Pensions in a Divorce

In a divorce, especially a long term marriage, a pension can be a very valuable asset. Assets accumulated during the marriage are marital assets, regardless of whose name the asset was accumulated in. Retirement accounts, including pensions are marital assets to the extent that they were acquired during the marriage. If a portion of the pension was accumulated prior to the marriage or after the marriage, the court will use a coverture fracture to determine the marital portion. This means the number of years married over the total years that the pension was accumulated will be marital. In addition, many pensions have a survivor benefit that should also be considered. A survivor benefit is an election when the pension is taken that reduces the monthly pension payment based on the election that is chosen. Depending on the value of the pension and the health of the parties, the divorcing spouse may want to pursue the survivor benefit whereby they secure a monthly payment in the event of pension earner’s death which could be various percentages of the monthly pension depending on the election that was taken. Instead of doing a percentage of the marital portion, in some cases, it may be beneficial to have the pension appraised and the survivor benefit appraised to offset the value with other assets. Usually a private company will be hired to do this type of valuation.

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When is it a custody relocation?

Pennsylvania’s custody relocation statute, 23 PA C.S. 5337, requires the party seeking relocation to get court approval or the other parent’s permission prior to relocation. A relocation is defined as any move that would “significantly impair the ability of the nonrelocating party to exercise custodial rights.” This definition allows some room for interpretation on when it is necessary to request relocation. Some obvious examples would include a move which would potentially require a flight or at least several hours driving. If you had a schedule with a mid-week dinner visit or overnight, it would be impractical to travel that distance every time.

However, many moves are a much shorter distance and it can be argued that there is not significant impact on the existing custody order. Nonetheless, you may still find that the courts expect a relocation petition. For example, what if you only move ten minutes away from where you live now; does this count as a relocation? Here are a few scenarios which may weigh in favor of still classifying the move as a relocation and following the relocation protocol in 23 PA C.S. 5337: (1) Across state lines (2) Across county lines (3) A different school district. When in doubt, it is better to err on the side of caution and request relocation. In C.M.K. v. K.E.M., the court held that the mere fact of filing for relocation does not support a presumption that the requested move is in fact a relocation and the parties can still litigate if the move does significantly impact the other parent’s custodial rights. 45 A.3d 417, 425-426 (Pa.Super. 2012).

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A No Fault Divorce does not always mean a simple divorce

In Pennsylvania, many people hear the words no-fault divorce and expect that it is going to be simple. Most people in Pennsylvania will get divorce on no-fault grounds, even when there has been infidelity or abuse. No-fault divorces refers to the grounds for divorce, meaning you either both sign consents to a divorce, or after two years of separation, you obtain grounds based on a two year separation. It does not necessarily mean that it will be simple. The complexity depends on the assets that have accumulated during the period in which the two parties are married as well as the difference in the incomes. If the parties are seeking to allocate assets between them or one party is seeking alimony, it does not mean that you no-fault divorce will be simple. You will need to either come to an agreement on these issues or you will have to go to court. The simple divorce, however, is the divorce where there are no assets and there is no alimony sought. In those type of cases, you can get divorced relatively quickly after both parties consent or the two year period has passed. You will also not have to go to court and you can process the divorce through the mail. This is true even if there are children since custody is handled separately from the divorce.

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Served with Divorce Papers? Now what?

If you are served with divorce papers, you will want to first, keep them. Do not throw them away even if you are upset or angry. You can get a copy from the courthouse, however, if you have already done this. You are considered served on the day you receive them even if you tell the person who tries to hand it to you that you do not want the divorce papers. Your service date is an important date as it starts the period of time in which you have to wait if you are doing a mutual consent divorce. You will want to have an attorney look at the papers that you received so that they can determine for you if you need to response. The papers will always say you only have so many days to respond. Do not panic. It is unlikely that you will lose rights if you do not answer them within that time frame. Do, however, consult an attorney, who will be able to explain the legal jargon to you and let you know whether a response is required. A response is only usually required if you need to raise new claims such as spousal support or alimony or equitable distribution. Most attorneys will offer a consultation either by phone or in their office, and oftentimes, this initial consultation will be free. If you need support, you may bring someone with you to the appointment or have them on the phone with you. If you are served papers, in most cases, you will want to freeze any joint debt and secure any joint assets, but you may also want to discuss it with your attorney. Being informed and knowing what to expect is an important part of getting you through the process. An attorney can discuss with you what you can expect with respect to distribution of assets, support, and also the time frame in which things may happen or how things may be delayed.

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Explaining a Waiver form for Divorce

Oftentimes parties are pro se, meaning they represent themselves. Sometimes, it can be frightening to receive paperwork in the mail that you do not understand or fear may end upwaiving your rights. In a divorce you may receive one of two types of a waivers. One is called a waiver of Notice of Intent to Request a Grounds Order and the other is a Waiver of Notice of Intent to Request a Divorce Decree. What these forms mean if you sign them are that you are giving up the 20 day notice required to let you know either a grounds order or decree will be entered. In the case of the decree, you need to make sure that you have reached an agreement on everything before you sign it. Otherwise, if you did not make claims for alimony or to divide property, they will be waived if you sign that and a decree gets entered. If you are served with one and have not raised claims but want to, you will need to do that rather quickly. For a waiver of notice of intent for a grounds order, it means grounds will be entered. You are not divorced just because grounds are established, however, you may lose rights to inherit if your spouse dies and you may want to make sure discovery is done. If you are ready to move to your divorce hearing, then signing a waiver for the grounds will not hurt you.

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Benefits of Mediation in Law

Mediation is a neutral and voluntary process wherein two or more parties that have a dispute meet with a mediator who facilitates the meeting in an attempt to come to an agreement and keep the matter out of court.  A mediator does not have to be an attorney. Oftentimes, counselors receive training in mediation as well.  It is important to keep in mind that if an attorney is a mediator, they cannot give you legal advice since they are a neutral party.  For this reason, some people also keep an attorney for legal advice while going through mediation.  The benefit of mediation is that it often can resolve issues or at least narrows down the issues in dispute.  This is helpful in the legal setting so that only money is spent litigating a very focused issue, if needed.  If an agreement is reached in mediation, it can be drafted and signed by the mediator or it can then be taken to an attorney to review.  Agreements that are reached in mediation not only help keep costs down, but they also help to keep the relationship more amicable since both parties have had input in coming to the agreement.  

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Filial Responsibility Statute

Under the PA filial responsibility statute, adult children are financially responsible for payment of their parents’ medical care and nursing home costs. This was recently decided in the case of Health Care and Retirement Corporation v. Pittas, a 2012 PA Superior Court case. See 23 Pa.C.S. § 4603.

However, there is a bill currently pending before the PA House Judiciary Committee which is looking to eliminate a child’s responsibility. See House Bill 242 of 2015.

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Paternity by Estoppel

A presumption of paternity arises where a child is born into an intact marriage. In that circumstance, absent clear and convincing evidence to the contrary, the husband will be deemed to be the father. However, even in the absence of a biological connection, paternity may be established. Paternity by estoppel acts to impose an obligation on the party who holds themselves out as a father to the child and supports the child to continue to support the child. The Pennsylvania Supreme Court has held that the purpose of paternity by estoppel is to keep families intact and protect the best interest of the child by shielding them from claims of illegitimacy and, potentially, a broken family.

In the case of K.E.M. v. P.C.S., 38 A.3d 798 (Pa 2012), Appellant, mother of G.L.M., brought an action for support against Appellee, the alleged father of G.L.M. Appellant was married to H.M.M. at the time G.L.M. was born. Further, H.M.M. had supported the child and acted as a father figure to G.L.M. for most of the child’s life. Appellee filed a motion to dismiss the support action on the basis of a presumption of paternity on the part of H.M.M. and paternity by estoppel. Appellee’s argument that H.M.M. had acted as G.L.M.’s father prompted the lower court and Superior Court to grant his motion to dismiss the support action against him and continue to hold H.M.M. responsible for G.L.M.’s support. In this case, H.M.M. submitted to a paternity test which ruled him out as the father, however, on appeal the court found it was in the child’s best interests to still recognize Apellant’s husband, H.M.M., as the father.

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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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