Pensions in Pay Status

Pensions already in pay status at the time of separation require additional considerations in a divorce matter. The pensions can still be divided as a marital asset however the method of valuing the total value of the pension for distribution is altered. This is because often elections for survivor benefits are made at the time the benefits commence and are usually irrevocable. Accordingly, any survivor benefit should be valued separately and set against the value of the pension itself. Pensions in pay status also present a unique issue when it comes to support.

Based on the case law established in Pennsylvania it is impermissible to use a monthly pension benefit as income available for support and also divide the pension itself as an asset in equitable distribution. This was made clear in Cerny v. Cerny, 440 Pa. Super. 550 (1995) and reiterated in Rohrer v. Rohrer ,715 A.2d 463 (1998). This same rule extends beyond just monthly pension benefits as evidenced by the fact pattern in Cerny. There, Husband had received a lump sum payment from his employer following termination. The lump sum was split as an asset and the figure received was also the basis for income available with respect to the support award. Husband was successful in appealing the decision such that the payment was only considered for support purposes and deemed a separate asset for equitable distribution purposes.

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Benefits Paid to Children

Benefits payable to the children can affect the child support award. Pennsylvania Rule of Civil Procedure 1910.16-2(b) discusses the treatment of public assistance, SSI benefits, certain Social Security payments and foster care payments in regard to calculation of support. Per sub-section (1) public assistance and SSI payments cannot be considered. SSI is a federal means-tested benefit. It operates as more of a welfare benefit similar to public assistance. Examples of public assistance include cash assistance or food stamps. Sub-section (2) addresses social security derivative payments for children. Any social security benefit as a result of a parent’s death, disability or retirement should be addressed in the child support calculation. It should be added to the income of the party receiving the benefit.

Foster care payments are discussed in sub-section (3). Any payments received by the foster parent should not be included as part of their income in any other support matter. The rules for which benefits payable to children should be included in a support award parallel the rules for the parents. For example, Social Security disability (SSD) benefits received by the parents are counted as income for the party receiving it. The disability payments are meant to replace the income the recipient would have received if they had not become disabled. In contrast, Supplemental Security Income (SSI) is not meant to replace lost earnings but instead to provide some income to disabled people who would otherwise be poverty-stricken and accordingly is not classified as income for calculating a support award.

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Breast feeding in Custody Disputes

Breast-feeding alone is not a reason to grant custody to the Mother over the Father in a custody dispute. In J.R.M. v. J.E.A., 33 A.3d 647 (Pa.Super. 2011), the court granted Mother primary physical custody based exclusively on the fact that the parties had poor communication and Mother continued to breast feed the child. Father was subsequently able to successfully appeal the trial court’s order. Father pointed out the court’s failure to consider all the factors as listed under Section 5328 of the custody statutes. Section 5328 mandates that courts consider all of the listed factors relating to the best interests of the child when entering a custody order.

The relevant factors for consideration include the following: (1) which party is more likely to promote a continued relationship with the other parent; (2) any present or past abuse within the respective households; (3) parental duties performed by each parent; (4) need for stability in the child’s education, family life, and community; (5) extended family relationships; (6) sibling relationships; (7) preference of the child if mature enough to offer; (8) attempts to withhold the child or poison relationship with other parent; (9) which party is more likely to foster a loving, consistent, nurturing environment; (10) which party is more likely to attend to the daily and special needs of the child; (11) proximity of residences; (12) actual availability to care for child or ability to make alternate arrangements; (13) level of conflict between parents and/or ability to co-parent; (14) present or past drug or alcohol abuse; (15) present or past mental or physical health concerns; (16) any other relevant factor. Criminal background is also relevant for all adult household members. The procedural requirements now mandate each party to submit a criminal history verification at the onset of a custody matter as well.

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Great-Grandparent Custody

Great-grandparents are able to pursue partial custody just as grandparents are. Section 5325 of the Domestic Relations Statute indicates great-grandparents may petition for partial custody/visitation where one of the following conditions is met: (1) a parent of the child is deceased; (2) the parents of the child have been separated for at least six months; or (3) the child has lived with the great-grandparent(s) for at least 12 consecutive months and a petition is filed within six months after the child is removed from the home.

It is also possible for grandparents to request any form of custody under Section 5324. While great-grandparents are not specifically mentioned in this provision, they can still pursue custody if they stand in loco parentis to the child. In loco parentis status requires more than just a caretaker position. For example, in Argenio v. Felton, 703 A.2d 1042 (Pa. Super. 1997), the Superior Court denied in loco parentis status to a grandparent who daily cared for the child. The court based its conclusion on the fact that the grandmother “proved that she acted as no more than a care-taker, in effect, a baby-sitter for the child, albeit a frequent caretaker.” In loco parentis literally means in the place of the parent. In Peters v. Costello, 891A. 2d 705 (Pa. 2005), the Court explained “in loco parentis status embodies an assumption of parental status as well as an actual discharge of parental duties, and gives rise to a relation which is exactly the same as between parent and child.”

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Post-Divorce Healthcare Options

Once a divorce decree is issued, entitlement to health benefits as a spouse terminates. COBRA was enacted in 1986 and allows temporary healthcare continuation at group rates for ex-spouses. The ex-spouse is responsible for the entire premium. In that regard, it will likely be more expensive than the rate for the employee who is likely receiving an employer contribution toward the premium. Employers with 20 or more employees are required to offer COBRA coverage. The maximum coverage period in the event of divorce or legal separation is 36 months.

A new alternative to COBRA coverage is the healthcare marketplace. Enrollment is generally at the start of the year however, enrollment is possible throughout the year if there is a qualifying event. Losing prior coverage as a result of divorce, having or adopting a baby, and getting married all constitute qualifying events. The marketplace will generate the plans available based on household income, location and tobacco use. There are four plans ranging from bronze plans which cover 60% of expenses to platinum plans which cover 90%. The monthly premium correlates with the percentage of out-of-pocket expenses that will be covered. The lower the monthly payment the higher the out-of-pocket expenses will be. All plans include routine doctors visits and preventative care, prescriptions, hospitalization and maternity care.

Medicaid is also an option. Eligibility for Medicaid coverage is based on adjusted gross income in relation to federal poverty levels.

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Same Sex Divorce

In a decision rendered May 20, 2014, the Honorable John E. Jones, III, sitting for the US District Court in the Middle District on the case of Whitewood v. Michael Wolf, ruled that two of Pennsylvania’s laws regarding marriage were unconstitutional on the basis that they violated the Due Process and Equal Protection clauses of the Fourteenth amendment. Now that Pennsylvania recognizes same-sex marriages, same-sex partners looking to dissolve their marriage are subject to the same process as far as divorce, equitable distribution and support. Most divorces proceed on the basis of no-fault meaning the parties need only allege an “irretrievable breakdown of the marriage” and either consent to the divorce after a 90-day period or establish 2-year separation. A no-fault divorce can also be obtained if one of the spouses is institutionalized for a period of 18 months provided they will likely still be institutionalized 18 months following the commencement of the divorce.

Equitable distribution is the term used in Pennsylvania referring to division of marital property at the time of divorce. Marital property will consist of nearly everything acquired in either party’s name from the date of marriage through to the date of separation. Equitable distribution does not necessarily mean a 50/50 split of all marital property. Instead, the statute on equitable distribution sets out 13 factors to be considered. Section 4321 of the Domestic Relations laws provides that married persons are liable for the support of each other according to their respective abilities to provide support as provided by law. Similar to child support, spousal support will be calculated based on a statewide guideline. Without children, spousal support is 40% of the difference of the net incomes of the parties. If there is also a child support order, spousal support will only be 30% of the difference of the net incomes.

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Protection from Sexual Violence/Intimidation

Pennsylvania’s Protection from Sexual Violence and/or Intimidation Act (PSVI) became effective this month. The Act allows victims to obtain a civil no-contact order for up to three (3) years. Adults and minors can petition for an Order on the basis of sexual violence. Only minors may obtain an Order on the basis of intimidation provided the offender is over 18 years old. There is no filing fee to file. A temporary Order can be granted following an ex parte hearing. A final hearing must be held within ten (10) days of when the Petition is filed. The victim must establish sexual violence and/or intimidation by a preponderance of the evidence.

The Protection from Abuse (PFA) Act also provides a civil remedy in the form of a stay away order however the PFA Act can only be utilized if there is a certain relationship between the victim and the offender. The PSVI Act does not restrict protection based on relationship of the parties involved. Sexual violence for purposes of the PSVI Act includes but is not limited to rape, involuntary deviate sexual intercourse, sexual assault, indecent exposure, and unlawful dissemination of an intimate image. Violation of a PSVI Order can carry criminal consequences. Pennsylvania is the 34th state to pass such an Act to provide some protection for victims of sexual assault since many cases do not make it into the criminal justice system.

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Unreimbursed Medical Expenses

Unreimbursed medical expenses may be allocated between the parties in a support matter in proportion to their income under Pa. R.C.P. 1910.16-6. The court may include the expenses within the support order or direct that it is paid directly to the party receiving support or their healthcare provider. The first $250 per year is the responsibility of the party incurring the expense. The parties will only need to share expenses that exceed $250 per year. Medical expenses eligible for reimbursement include co-pays and other expenses for reasonable, necessary supplies or services. Surgical, optical, dental and orthodontic expenses are included but are not an exhaustive list.

Expenses that are generally not eligible for reimbursement include cosmetic, chiropractic, psychiatric and psychological expenses. They may be included by mutual agreement or specific order of the court. Unreimbursed expenses should be calculated on an annual basis. Proof of the unreimbursed expenses must be supplied to the other party by March 31st of the following year. A limit may be placed on the amount to be reimbursed if it would otherwise be excessive. Domestic Relations can assist in the collection of unreimbursed expenses if the other party still refuses to pay their share after receiving timely documentation of the expenses. Untimely submission of unreimbursed expenses is left to the discretion of the court as far as if they will still be allocated between the parties.

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Important Dates for Defining Marital Property

There is often a misconception that assets and debts individual names will not be divided as part of a divorce action. This is simply not true. Section 3501 of the Divorce Code defines marital property as anything acquired by either party from the date of marriage up to the date of final separation. It also includes any increase in value on pre-marital assets. In the event of reconciliation after separation, the time frame for items acquired during the marriage and ultimately subject to distribution would change as the Divorce Code refers to final separation as the date to consider when determining the marital estate.

Case law has distinguished what actions/behavior will be considered a successful reconciliation, hence eliminating any prior date of separation for cut-off of the marital estate, versus those actions/behavior that will not change the initial separation date. Separation for the purposes of divorce is defined as the “complete cessation of any and all cohabitation.” Cohabitation, though not specifically defined in the Divorce Code, is generally understood to be living and dwelling together as husband and wife with the mutual assumption of all marital rights, duties and obligations.

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Mere attempts at reconciliation likely do not change the date of separation for the purposes of divorce. There must be more than just remaining in the same house overnight or for the weekend or taking a week long trip together. Even isolated instances of sexual relations do not mark successful reconciliation. The court will examine the facts of the reconciliation to determine if it was a full-blown resumption of the marital relationship which would potentially result in a different date of separation or alternatively, treat the failed attempt as further evidence that the marriage is irretrievably broken and the divorce should proceed on the initial separation date. In Britton v. Britton, 400 Pa. Super. 43 (1990) a reconciliation did defeat the period of separation when the reconciliation lasted three months, the parties resumed living together, ceased to maintain separate residences, jointly purchased a townhome, shared the same bedroom, engaged in sexual relations, shared a joint bank account and had a social life as husband and wife.

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Facts about Emancipation

There is no emancipation statute in Pennsylvania and cases are determined on a case-by-case basis looking at the facts. The key factor is if the minor child has already established independence. This would include financially supporting themselves and living apart from their parent or guardian. Any judicial determination is not permanent and can be revoked if the circumstances change. Further, it is not enough for a minor child to point to an intent to live independently. Instead, they must already evidence their independent status prior to a formal determination. Marriage and enrollment in the military usually favor an emancipated determination though the same criteria should still be considered regarding independence. Overall, it is a very hard legal standard to reach.
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In most cases, you will find a judicial determination isn’t needed. Administrative agencies can make their own determination regarding a minor’s status. For example, the Department of Public Welfare would make that determination for a minor applying for public assistance. A school district can make that decision for a minor child attending one of their schools. Emancipated status is always for a specific and limited purpose. Examples of the most popular purposes include medical consent, ability to sign legally binding contracts (e.g. a lease), receipt of public benefits, and school enrollment. There is no general emancipated status that would give a minor all the same rights as an adult.

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