Alimony Modification

Alimony is support paid to an ex-spouse following the divorce decree. Unless otherwise stated by agreement, alimony may be subsequently modified due the changed circumstances of either party. The changes must be substantial and of a continuing nature. For example, if a party loses their employment or becomes disabled modification could be sought. An alimony provision within an agreement between the parties may not be modified in the absence of a specific provision allowing such a modification within the agreement.

Generally, the length is directly attributable to the length of the marriage. For example, a party may expect approximately 1 year of alimony for every 3 years married. For marriages of over 25 years, an indefinite term of alimony may be appropriate. However, the trend is to now consider the retirement ages of the parties when determining the appropriate duration of an alimony award. If the parties include alimony as a part of their own settlement agreement, they are free to set the amount and length as they so agree. The amount of alimony is largely based on the incomes of the parties but may also be affected by the distribution of the other assets, if any. In total, there are fourteen factors for a court to consider in awarding and/or modifying an alimony award. These factors can found at 23 Pa. C.S. Section 3701.

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3301(d) Affidavit and Counter-Affidavit

Most parties pursuing divorce will choose to proceed with no-fault grounds for divorce. A no-fault divorce simply means there has been an irretrievable breakdown of the marriage. There are two different ways to establish an irretrievable breakdown of the marriage under the Divorce Code. First, both parties may consent to the divorce after 90 days from when the complaint was filed and served. This is referred to as a 90-day mutual consent divorce. Alternatively, if one party won’t consent, the other party can move forward after the parties have been “separated” for two years. This is referred to as a 2-year separation divorce.

Procedurally, both parties must sign an affidavit of consent for a mutual consent divorce under Section 3301(c). For a divorce based on two year separation under 3301(d), one of the parties must file an affidavit of separation and then serve the other party with the filed affidavit as well as a counter-affidavit.

The counter-affidavit allows the other party to object to the date of separation or the assertion that the marriage is irretrievably broken. In addition, the counter-affidavit now also allows the other party to signal to the court the status of any economic claims pending. Specifically, a party can indicate if they wish to claim economic relief prior to finalization of the divorce, or if economic claims have been raised but not yet resolved. The right to claim economic relief incident to the marriage relationship is lost once a final divorce decree is entered. The counter-affidavit alerts the parties of the necessity of filing timely claims as well as how they should be filed. If the counter-affidavit is not returned within 20 days the divorce may proceed based on the date presented in the 3301(d) affidavit. A hearing on economic claims can be requested if issues have been raised; otherwise, a divorce decree can be entered.

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Mental Incapacity in Divorce Case

Section 3308 of the Divorce Code provides for an action in divorce where the defendant is suffering from a mental disorder. In practice, however, seeking a divorce where one of the parties is mentally incapacitated can raise unique issues. The Pennsylvania Rules of Civil Procedure discuss the steps that must be taken when one of the parties is incapacitated. An incapacitated person is defined as an “adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that the person is partially or totally unable to manage financial resources or to meet the essential requirements for physical health and safety.” Pa. R.C.P. 2051. If a person is determined to be incapacitated a guardian ad litem must be appointed to act on that party’s behalf.

If a party becomes incapacitated after a matter has commenced, the matter should be stayed pending appointment of a guardian. The court shall appoint a guardian if it ascertains that the Plaintiff is incapacitated. If a Defendant becomes incapacitated during the proceeding, the Plaintiff should petition for appointment of a guardian. Once a guardian is in place, the matter can proceed. The guardian is tasked with acting for the benefit of the incapacitated party as a fiduciary. A guardian can be replaced by motion of the other party or by the court.

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Step-Parent’s Duty to Pay Child Support for Step-Children

On December 29, 2015, the Pennsylvania Supreme Court decided that a step-parent can be responsible for child support if that step-parent has taken aggressive legal steps to obtain the same custodial rights as a biological parent. A.S. v. I.S., No. 8 MAP 2015 (Pa. Dec. 9, 2015). The mere existence of a relationship between the step-parent and child and other reasonable acts to maintain a post-separation relationship with stepchildren remainsufficient to establish a duty to pay child support. Id. citing Commonwealth ex rel. McNutt v. McNutt, 344 Pa. Super. 321 (1985).

In A.S. v. I.S., Mother had twin sons in Serbia in 1998. In 2005, Mother married Stepfather and moved with the two children to Pennsylvania. Stepfather filed for divorce in 2010, and filed for custody of the children in 2012, seeking to prevent Mother’s relocation to California with the children. The trial court granted Stepfather’s emergency petition and prohibited Mother from relocating. The trial court found that Stepfather had put himself in a situation of a lawful parent by assuming the obligations of a parental relationship without going through the formality of legal adoption. The trial court entered a final custody order granting the parties shared legal and physical custody of the children.

A support master dismissed Mother’s support complaint because the Stepfather was not the biological father and, therefore, did not owe a duty to support the children. Mother filed exceptions to the master’s recommendation arguing that Stepfather should be treated as a biological parent for support purposes because he had sought and obtained legal and physical custodial rights as if he were a biological parent. The trial court affirmed the master’s dismissal of the support complaint and the Superior Court of Pennsylvania affirmed the trial court’s decision. Mother appealed to the Supreme Court of Pennsylvania on the issue of whether a step-parent who obtained equal custodial rights should be liable for child support and, if so, whether the support amount should be calculated based on the child support guidelines.

The Pennsylvania Supreme Court noted that the child support statute providing “parents are liable for the support of their children…” does not define “parent” or “child.” 23 Pa.C.S. §4321. However, other Pennsylvania cases have held that a “parent” for support purposes is not limited to biological or adoptive parents. Additionally, the Court cited to cases holding that a party may be prevented from denying his status as a father where he has held himself out as such. Id. citing Fish v. Behers, 559 Pa. 523 (1999); Hamilton v. Hamilton, 2002 Pa. Super. 72 (2002). When a step-parent commences litigation to achieve all the rights of parenthood at the cost of interfering with the rights of a fit parent, the same public policy is implicated: it is in the best interests of children to have stability and continuity in their parent-child relationships. “By holding a person such as stepfather liable for child support, we increase the likelihood that only individuals who are truly dedicated and intend to be a stable fixture in a child’s life will take the steps to litigate and obtain rights equal to those of the child’s parent.” Id. at *19.

Ultimately, the Court found in this case that “when a step-parent takes affirmative legal steps to assume the same parental rights as a biological parent, the step-parent likewise assumes parental obligations, such as the payment of child support.” Id. at *1. The novelty of this decision could have far-reaching effects on child support obligations.

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New Birth Certificates

Additional copies of a birth certificate may be ordered from the Department of Vital Records. An application is required along with a fee of $20. Fees may be waived for members of the armed forces. Simple changes to a birth certificate can be made by agreement of the parents through the Department of Vital Records as well. Desired corrections can be stated on the back of the birth certificate and must be signed by both parties in the presence of a notary. A change in civil status form is required for a name change on a birth certificate due to the subsequent marriage of the biological parents. An acknowledgment of paternity form must be filed to have the biological father added to a birth certificate where no one was previously listed.

Following adoption, a new birth certificate will be issued upon receipt of the Certificate of Adoption certified by the local Orphan’s Court and then submitted to the Department of Vital Records. Other types of name change may require a court order. The procedures for a petition for a name change must be followed. A court order approving the name change may be obtained following a hearing. A certified copy of the court order with raised seal must be sent to the Department of Vital Records to obtain a new birth certificate. The Pennsylvania Department of Vital Records can be reached at (844)228-3516 or at the address below. Click here to read more about name changes.

Division of Vital Records
Attn: Corrections Unit
101 S. Mercer Street, Room 401
PO Box 1528
New Castle, PA 16101

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Interstate Adoptions

The Interstate Compact for the Placement of Children addresses adoptions where a child is to be transferred across state lines. It creates uniform legal and administrative procedures for interstate adoption matters. All U.S. states are members of the Compact. The Compact has existed for approx. forty years. The state where the child presently resides must approve of the transfer across the state lines for placement. A copy of the approval is then submitted to the court for filing. In order to get approval, a packet must be created containing key information on the child, the prospective parent(s) and the intended place of residence. For example, the child’s social, medical, and educational history should be discussed.

After the sending state is satisfied that the packet covers all the relevant areas, it is sent to the receiving state for their review as well. The receiving state would be responsible for having a home study completed for the intended residence typically through the local social services agency. If the receiving state is satisfied following the home study, it notifies the sending state as well as sends a copy of the home study. At that time, following approval by both states involved, the interstate adoption may be completed. The Pennsylvania office of the Interstate Compact for the Placement of Children is located in Harrisburg and can be reached at (717)772-5503 for non-agency placements or (717)772-5502 for agency placements.

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Obstacles to a Name Change

Pennsylvania allows applications for a legal change of name via petition to the court. One of the requirements for a name change which must be submitted with the petition is the petitioner’s fingerprints. The fingerprints are subsequently submitted to the Pennsylvania State Police to check for any prior criminal offenses as defined in 18 Pa. C.S. Ch. 91 (criminal history record information). The State Police will then report back to the court if they are subject to 18 Pa. C.S. Ch. 91 or not. Existence of a criminal background does not always defeat a name change application. The court may still approve a name change if over 2 years have passed from the completion of the criminal sentence with no remaining obligations (e.g. probation or parole) or the person has been pardoned. The State Police will have to update the criminal history record to reflect where a name change has been granted for a convicted felon.

There are certain offenses which will defeat a name change application. Pursuant to 54 Pa. C.S. § 702 (c), the court may not order a change of name for a person convicted of murder, voluntary manslaughter, rape, involuntary deviate sexual intercourse, statutory sexual assault, sexual assault, aggravated indecent assault, robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i) (relating to robbery), aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) or (2) (relating to aggravated assault), arson as defined in 18 Pa.C.S. § 3301(a) (relating to arson and related offenses), kidnapping or robbery of a motor vehicle or criminal attempt, criminal conspiracy or criminal solicitation to commit any of the offenses listed above or an equivalent crime under the laws of this Commonwealth in effect at the time of the commission of that offense or an equivalent crime in another jurisdiction.

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Impact of Inheritance

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The receipt of an inheritance may impact your divorce or support case. Regarding divorce, and specifically equitable distribution of marital property, Section 3501 of the Divorce Code defines what will be considered marital property, and up for division, versus what will be considered non-marital property. Marital property includes all property acquired by either party from the date of marriage through the date of separation. There is a presumption all property acquired during the marriage is marital regardless of how title is held (e.g. individually vs. jointly). However, property received as a gift, bequest, devise or descent is non-marital per 23 Pa. C.S. 3501(a). Accordingly, an inheritance that is received during the marriage can still be claimed as non-marital property. As a practical tip, parties should avoid commingling inheritance funds with other marital funds. Inheritance funds may still need to be disclosed since the separate assets of the party are a factor for equitable distribution under 23 Pa. C.S. 3502.

Money received by way of an inheritance is similarly not to be considered income for a support matter. This was established in the case of Humphreys v. DeRoss, 790 A.2d 281 (Pa. 2002) wherein the court noted that the term “inheritance” was not expressly listed in the statutory definition of “income” under 23 Pa. C.S. 4302 and so was not intended to be included. However, Humphreys also established that receipt of an inheritance may still be a factor under Pennsylvania Rule of Civil Procedure 1910.16-5. Rule 1910.16-5 states factors for the court to consider for deviation from a guideline support obligation. One of the factors the court may consider is the assets and liabilities of the parties. In E.R.L. v. C.K.L., 2015 PA Super 220, the court upheld an upward deviation of a child support award where father had just received a $600,000 inheritance. The base support award was appropriately calculated in that case without the inclusion of the inheritance money.

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Discovery in Custody

Discovery is the process of obtaining information from the opposing party in the course of a lawsuit. Discovery is governed by the Pennsylvania Rules of Civil Procedure (Pa. R.C.P.). Rule 1930.5 states that there shall be no discovery in a simple support, custody or Protection from Abuse proceeding unless authorized by court. In order for you to be allowed to send discovery in a custody matter, you must get permission from the court. If a request for discovery is granted, discovery would then proceed as in any other matter.

Formal discovery methods include interrogatories, depositions, production requests, subpoenas to produce things and/or documents, and/or requests for admission. Interrogatories and production request are the most frequent methods of discovery in family law cases. Interrogatories are a written set of questions for the other party to answer. A production request lists all the documents a party is seeking. Subpoenas are a good tool when it is necessary to get information directly from the source in the instance a party does not have it, will not cooperate in turning it over, or you suspect they may tamper with the documentation. Examples of relevant documentation to seek in a custody matter may include health care records for the children and/or the other parent, academic records, any prior evaluations completed, expert reports, criminal records of the other parent, and information on potential witnesses.

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Child Support

Child support in Pennsylvania is based on statewide guidelines established by the Pennsylvania Supreme Court. The guidelines are intended to ensure that similarly situated parties are treated similarly. Accordingly, all parties making $3000 per month with 3 kids would pay the same amount of support based on the guideline amounts. The guidelines are based on an “Income Shares Model.” Accordingly, the guideline amount will be based on the combined net monthly income of both parties.

For purposes of support, net income only allows deductions from gross income for taxes, F.I.C.A. payments (i.e. Social Security), non-voluntary retirement payments, mandatory union dues and alimony paid to the other party. Gross income includes all wages, salaries, bonuses, fees, commissions, income from business or property, pension and/or other retirement, income from an estate or trust, Social Security disability or retirement benefits, temporary and permanent disability payments, workers’ compensation, unemployment compensation, alimony payments, and all other entitlements to money or lump sum awards.

The guideline amount looks at the combined monthly net income for both parents and the number of children. The child support award is then determined based on any applicable custody schedule and the proportion of income comprising the guideline amount. Additional expenses can be added in such as health insurance costs, child care costs, summer camp, private school tuition and unreimbursed medical expenses. These expenses will also be split between the parties in proportion to their income.

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