Fault Grounds and Defenses

Pennsylvania has a mixed approach to divorce in that it still allows fault grounds in addition to no-fault grounds. 23 Pa CS 3301(a) lists the fault grounds for divorce as follows: (1) willful and malicious desertion, without reasonable cause, for the period of one or more years; (2) adultery; (3) cruel and barbarous treatment; (4) bigamy; (5) imprisonment following conviction for a term of two or more years; and (6) indignities to the point of life being intolerable and burdensome. The party alleging fault must prove its existence and must also establish they are the “innocent and injured spouse.”

Procedurally, when a fault ground is alleged the first step is to establish the fault has occurred. A motion for appointment of a master would need to be filed to enable a master to hear testimony on the claims. There are defenses or bars to fault grounds which could be raised. Recrimination is a defense on the basis that there is no innocent spouse and both spouses are guilty of faulty behavior. Provocation occurs where the “innocent” spouse provoked the other spouse into the faulty conduct. Comparable to provocation, connivance is a defense where it is alleged the “innocent” spouse helped to manufacture the fault grounds which are being sought. For example, on a claim of adultery, the innocent spouse hired a prostitute for their spouse. Finally, condonation is a claim that the fault ground has already been forgiven by the innocent spouse and the marital relationship resumed after the offense. After the fault grounds are established, the divorce matter can proceed on other ancillary claims such as equitable distribution.

Click here to read more on grounds for divorce.

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International Parental Kidnapping

International parental kidnapping occurs when a child is removed from the United States with the purpose of interfering with the other parent’s custodial rights. The federal law governing this issue, 18 U.S.C. §1204, defines child as a minor less than sixteen (16) years old and specifies that parental rights includes any custody rights (sole, joint, visitation) whether existing by court order, prior agreement or operation of law. There are affirmative defenses under the law which would consider if removal is pursuant to a court order, for the purpose of escaping domestic violence, or of a temporary emergency nature. Sanctions for parents found to be guilty of international kidnapping include imprisonment for up to three years.

Return of the child may be arranged through the Hague Convention of the foreign country is a signatory to the convention. Otherwise, the U.S. Department of State will try negotiation with the foreign country in an attempt to secure return of the child. With regards to U.S. custody orders, it’s good practice to provide that international travel may only be by written consent of both parties or court order. Parties should pay attention to which country the other parent intends to travel to and whether that country belongs to the Hague Convention on Civil Aspects of International Child Abduction and would recognize a U.S. custody order if necessary. Additional information on international child abduction is available through the U.S. Department of State website below.

U.S. Department of State: International Child Abduction

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Insurance Policies

Questions regarding insurance policies often come up in the context of a divorce. Married couples may have commingled auto insurance policies, health insurance plans, and/or life insurance policies with their spouse as beneficiary. Technically, there are no rules on maintaining certain policies that existed at the commencement of the divorce in the sense that there is no automatic punishment or sanction for dropping these policies at separation. On the other hand, the courts have the power to order certain policies be maintained through their general equity powers in the period between separation and divorce. Perhaps, the most prudent action is to maintain all policies until finalization of the divorce or other mutual agreement or seek the advice of an attorney first to avoid the potential of additional fees that may be incurred if you are ordered to reinstate any policy and/or be responsible for any liability incurred while the other party was uninsured. Additionally, as it relates to health insurance specifically, it is routinely ordered as part of a support action and unreimbursed medical expenses, which can be substantial if there is a lapse insurance coverage, will also be shared.

Section 3502(d) of the Divorce Code provides that the court can order the continued maintenance and beneficiary designations of certain policies or even the purchase of new policies as part of equitable distribution. For example, life insurance policies may often be utilized as part of an equitable distribution award to ensure the receipt of ongoing support obligations such as alimony. If there is no agreement or Order on life insurance policies post-divorce, the insured should update their policies immediately to reflect their desired beneficiary. Pennsylvania estate law does provide that post-divorce the ex-spouse is no longer entitled to receive payment on the policy even if the beneficiary designation on the policy was never updated. However, this will only be the end result for a private policy. Policies sponsored by an employer are governed by federal law and under ERISA, the proceeds must be paid per the plan documents regardless of the termination of the marriage.

Click here to read more on insurance policy designations.

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Discovery in Support Cases

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 support matter, you must get your case deemed complex by the court. An example of a potentially complex support case requiring discovery would be one where one, or both, of the parties are self-employed. Procedure in Bucks County calls for a hearing date on the issue of whether or not discovery should be permitted. If so, the substantive portion of the hearing will be postponed pending completion of discovery as granted.

Formal discovery methods must adhere to the Rules of Civil Procedure and the acceptable 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 support may include personal and business tax returns, W-2s, 1099 Forms, pay stubs, income projections, profit and loss statements, balance sheets, business ledgers, summaries or appraisals of all assets/property/equipment owned by the business, and statements for all personal and business bank accounts and/or credit cards.

Click here to read more about support.

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National Adoption Day

Bucks County will hold its National Adoption Day, tomorrow, November 21, 2014. The celebration begins at 11 a.m. on the third floor of the main courthouse in Doylestown, PA. The celebration is spearheaded by the Bucks County Children and Youth Social Services Agency as well as the Register of Wills and Orphans’ Court. This year Pearl S. Buck International and Love the Children are being honored for their work in finding homes for children. A brief reception will follow the awards.

November is National Adoption Month. This is the 19th year for recognition of National Adoption Month after President Clinton extended the recognition from a week to the entire month of November in 1995. The week-long celebration began in 1984 under President Ronald Reagan. Pennsylvania participates in presentation of a proclamation every year regarding National Adoption Month pledging its commitment to make sure every child has a place to call home.

Click here for more information.

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Family Law and Immigration

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Family-based immigration is one of the more popular pathways to legal residence in the United States. It is important to understand how family law actions may affect immigration status. Marriage to a US citizen potentially creates an opportunity for a noncitizen to achieve residence. The marriage must first be valid under state law as with any other marriage, but also must pass the criteria of the Immigration and Nationality Act. Marriage fraud, marriage for the sole purpose of obtaining residence, is a serious concern. U.S. Citizenship and Immigration Services (CIS) will make inquiries into whether there is a bona fide marriage. Additionally, permanent residence is not an option unless the parties have been married for at least two years.

Just as marriage creates an opportunity for residence, divorce can end eligibility for immigration benefits. This is particularly true if the divorce or legal separation occurs prior to the spousal visa being finalized. Divorce may also draw the attention of the CIS to ensure the marriage was bona fide in the first place. Federal law governs how the immigration process works whereas family law is governed by state law. Additionally, family law actions do not require any type of legal US citizenship by the parties. Instead, sufficient residency within the jurisdiction of the local court is generally all that is required for anyone to bring a family law action.

Click here to read more on immigration.

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Uniform Child Custody Jurisdiction and Enforcement Act

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) clarified an uniform approach to dealing with child custody matters nationwide. Since its inception in 1997, 49 states as well as the District of Columbia have adopted the Act. One of the goals achieved through the UCCJEA is clear guidance on who should exercise jurisdiction over a custody matter. The preferred method for establishing jurisdiction is based on the home state of the child. The homes state is defined as the state where the child had been living for at least six (6) months prior to the custody action or since birth if the child is less than six months old. If jurisdiction is not clear based on an analysis of the home state, the courts should then look to see where there are significant connections and substantial evidence relevant to the custody action. Significant connections is more than just mere presence in any state.

Once a court obtains jurisdiction under one of guidelines above, that court continues to have exclusive jurisdiction until it is established that another court has become more suitable for jurisdiction. Accordingly, any modifications of custody must go through the court that made the initial or prior determination. There is an exception to the rules on jurisdiction in the event of an emergency. If a child is in danger and there is a need for immediate action, the jurisdiction where the child is located at that time can enter a temporary emergency order. The UCCJEA also provides a procedure for registration and enforcement of custody orders across state lines.

Click here to read more on custody.

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Fair Rental Value

The issue of fair rental value arises where one spouse is no longer living in the marital residence pending finalization of a divorce action. The principle behind fair rental value is that the spouse that has moved out of the former marital residence still has a ½ interest in the property and accordingly, should be compensated for their interest. The court must consider a number of items in reaching an appropriate calculation of any rental credit due. First, the court must determine if there are any equitable defenses that should offset the total of any rental credit due. Second, the court must consider the length of the dispossession. Case law also establishes that the other spouse must be in actual possession of the home.

Finally, the court must calculate the total amount of credit for expenses paid on the home. These expenses would include the mortgage payments and other ordinary expenses related to the home. Similar to any rental credit due, expenses should be split in half to reflect each party’s ownership interest. If the rental value exceeds the expenses related to the home, the spouse that has left the home should get a credit for ½ of the rental value offset by the expenses. An argument for fair rental value is most likely to occur where the home is owned outright such that no mortgage payments are made or there are relatively small monthly payments on any debt associated with the house compared to what the home could rent for.

Click here to read more about equitable distribution.

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Retake Maiden Name

A spouse can elect to retake his or her prior name through the course of a divorce action. Pursuant to 54 P.S. § 504, “any person who is divorced from the bonds of matrimony may resume any prior surname used by him or her by filing a written notice to such effect in the office of the clerk of the court in which the decree of divorce was entered, showing the caption and docket number of the proceeding in divorce.” It is also possible to request to retake your maiden name while the divorce is still pending in Bucks County. Check with your county court regarding any applicable filing fee. Currently Bucks County has a $9 filing fee.

Subsection (b) of the statute addresses divorce decrees granted outside of the jurisdiction. In that event, notice to retake maiden name can still be filed after a certified copy of the foreign decree has been filed with court where notice to retake maiden name is being filed. The form of the notice to retake prior surname is below. It is also available on the Bucks County Prothonotary website.

                    NOTICE OF ELECTION TO RETAKE PRIOR NAME

Notice is hereby given that (Current Name) , having been granted a Final Decree of Divorce on (Date) , hereby elects to retake and resume the prior surname of (Prior Name) and gives this written notice avowing her intention in accordance with 54 Pa.C.S.A. Section 704.

(Current Name)

TO BE KNOWN AS:

(Prior Name)

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Name Change

Adults seeking to legally change their name will need to file a petition with the court. In addition to completing the petition, the party should be prepared to pay a filing fee directly to court at the time of filing as well as supply a copy of their fingerprints. Fingerprinting can be done by the local police department where the filing party resides. The purpose of the fingerprinting is to allow for analysis of any criminal background, if applicable. The name change statute does not allow a change of name if certain crimes have been committed. A search through the Prothonotary’s office and Recorder of Deeds will also need to be done prior to a successful name change to ensure there are no other concerns which may bar the application for a name change.

Another requirement prior to obtaining a name change is to publish notice of the petition and hearing date. Generally notice must be published in the law reporter for the county as well as a newspaper of general circulation. This is to notify anyone who may have an objection to the name change and grant them the opportunity to appear in court and state their objections. The total fees can be in the range upwards of $500 excluding attorney fees if representation is desired.

In the case of a minor child, service must be made on the other parent if there whereabouts are known. Otherwise, notice may be accomplished solely by the publication that is already required but permission of the court should be sought to skip specific service on the other parent. If both parents are in agreement with a name change to a minor, the simpler option is to request a correction to the birth certificate through vital records rather than foot the expense to file a petition and seek a hearing. Fingerprinting and other background checks are not required if a name change for a minor must be sought through the court due to lack of contact with the other parent or lack of mutual agreement on the desired change.

Click here to read more on Name Change.

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