It is possible for a spouse intentionally left out of the other spouse’s will to still receive a share of the estate in the event of death. Pennsylvania law provides for an “elective share” pursuant to 20 Pa. C.S. 2203(a). This law provides that if a person is still married at the time of their death with no divorce pending, the surviving spouse can elect to receive 1/3 of that person’s estate. There are items that are excluded from the estate instances where an elective share will be applied. 2203(b) states the following exceptions: (1) any conveyance made with the express consent or joinder of the surviving spouse; (2) the proceeds of insurance, including accidental death benefits, on the life of the decedent; (3) interests under any broad-based nondiscriminatory pension, profit sharing, stock bonus, deferred compensation, disability, death benefit or other such plan established by an employer for benefit of its employees and their beneficiaries; (4) property passing by the decedent’s exercise or nonexercise of any power of appointment given by someone other than the decedent.
To simplify, a surviving spouse cannot receive any portion of something that they already agreed to give away by way of previously consenting to it. As it relates to subsections (2), (3) and (4), accounts that have a beneficiary designation will pass to the named beneficiary. Additionally, the surviving spouse waives the right to seek other items they may have been entitled to if they choose to exercise the elective share. The surviving spouse must reduce to writing their intent to exercise the elective share and timely file with the court. Either spouse may waive their right to exercise the elective share before or during the marriage or even after death of their spouse. It is wise to consult with an attorney to see if choosing the elective share is the best outcome if you are left out of a spouse’s will.
Click here to read more on Estates and Probates.
Moving Out of PA With Your Child Before DivorceSeptember 25, 2024 - 2:26 pm
The Statute of Limitations and Your Bucks County Divorce DecreeSeptember 20, 2024 - 10:00 am
How Long Should You Keep Divorce Papers?September 12, 2024 - 1:07 pm
Alternative Methods of Service for NJ Divorce
DivorceThe New Jersey Divorce Statutes provide for alternate ways to notify the opposing party of a divorce action if you do not have any contact information for the opposing party. One method is by substitute service on a special agent. This method involves serving the complaint on a person who is likely to be able to get it to the Defendant; typically, a close friend or relative. The other method involves publication of the complaint in the county where the Defendant was last known to reside. For either of the above methods, you must get approval by the court first. The court must be satisfied that every effort has been made to locate the Defendant including but not limited to inquiries of the Defendant’s friends, family, employer as well as inquiries through the post office, department of motor vehicles, voter registration, and the military.
If you are still unable to get contact information for the Defendant despite the inquiries as listed above, you can file a petition with the court for substitute service or service by publication. Where service by publication is granted, you will be responsible to publish notice of the divorce in the paper specified by the court and provide proof to the court that it was in fact published. If the Defendant does not respond in the time frame allotted, the divorce can then move forward. The next step is likely requesting a default judgment for Defendant’s failure to answer or respond.
Click here to read more on NJ Family Law.
NJ Grounds for Divorce
DivorceSection 2A:34-2 of the New Jersey Divorce Statutes outlines the different causes of action available for a divorce. The fault grounds include adultery, desertion, extreme cruelty, voluntary addiction or habituation, institutionalization, imprisonment and deviant sexual conduct. Desertion must be willful and continued for a period of 12 months or more. Extreme cruelty can be mental or physical but must be to the extent that it makes it unreasonable to expect the parties to continue to reside together. The fault ground for voluntary addiction refers to addiction to any narcotic drug and/or habitual drunkenness for 12 months or more. Institutionalization for a mental illness must be of a period greater than 24 consecutive months. Finally, deviant sexual conduct is that which is voluntarily performed by the defendant against plaintiff’s will.
New Jersey also recognizes no-fault grounds for divorce on the basis of separation or irreconcilable differences. The parties must live separately for at least 18 consecutive months with no prospect of reconciliation to succeed on the no-fault ground for separation. The parties may have experience irreconcilable differences for six months or more to succeed on that ground. All grounds for divorce require NJ residency for a period of at least one year with the exception of adultery. An adultery claim requires the third party who participated in the adultery be named as a co-defendant.
Click here to read more on NJ Family Law.
Laws Affecting Un-Married Couples
Family LawMany courts will recognize legal property and/or support rights arising from cohabitation of non-married parties. Palimony refers to the support obligation that may arise following the end of the relationship. NJ previously recognized palimony claims however a recent change to the law has made it more difficult to obtain by requiring a written agreement on support between the parties. This new statute did not result in the end of all palimony type claims however. Just a few months ago, in Joiner-Orman v. Orman, the court allowed a palimony award for Wife. The relationship lasted 39 years and Wife stayed home to raise the parties’ 4 children. The court relied on the doctrine of full performance to justify the palimony award in that Wife had fulfilled her end of the bargain as a homemaker and full-time Mom and so allowing Husband to leave the relationship without paying support would be unfair. The Orman case is not precedential as it is only a trial court decision and unreported.
Pennsylvania may also recognize some rights between unmarried couples as a matter of equity. Generally title controls ownership in the case of unmarried couples however there are exceptions to the general rule including unjust enrichment and quantum meruit. Unjust enrichment is the theory that it is unfair to allow the person that does not have title to be excluded from wealth they helped create. Quantum meruit is a Latin phrase meaning what one has earned. In this context, the court must consider whether the conduct of the parties evidences an agreement and/or expectation of some form of compensation for performance. Quantum meruit requires a contract or agreement, tacit or otherwise, whereas unjust enrichment does not and is just about the courts doing what is fair. The best way to avoid a legal battle if things go awry in any relationship is to have all agreements clearly stated and reduced to writing.
Click here to review all of our areas of practice.
Possibility Coaches – April 9, 2014
DivorceThe Possibility Coaches are hosting another free lecture titled “How to Emotionally Thrive During & After Divorce!” at our Doylestown office on April 9, 2014. Jon Satin and Chris Pattay are the partners behind the Possibility Coaches and focus on empowering men and women alike to lead meaningful lives and engage in healthy, successful relationships. Satin and Pattay started coaching together in 2002 and have labeled themselves as relationship, divorce, and life coaches. As it relates to relationships or divorce, their goal is to help in navigating through the emotional aspects as well as provide a framework for rebuilding to achieve a happier, healthier life. Please contact our office for additional information and to reserve your spot for this free event! Our Doylestown office is located on the 2nd floor at 44 East Court Street.
Click here to read more about the Possibility Coaches.
Same-Sex Adoption
AdoptionWhile Pennsylvania does not acknowledge same-sex marriages, the Supreme Court has established that same-sex adoptions can take place in the form of a second-parent adoption. A second-parent adoption allows a person to adopt the child of their “unmarried” partner. In 2002, the Supreme Court held that the parental rights of the first parent need not be terminated for the adoption by the second parent to take place. Since that time, PA has remained in the minority of states that allow second-parent adoptions on a statewide basis.
While in theory, second parent adoptions are similar to step-parent adoptions, they differ in terms of procedure. Both types of adoption will require background checks be completed as it relates to the adopting parents. Presently, there are three background checks required: (1) Child Abuse History Clearance; (2) PA State Police Criminal Record Check; and (3) FBI Criminal Background Check through the Department of Welfare. Same-sex adoptions will also require a home study whereas a step-parent adoption does not. The home study consists of several visits to the home over a span of time to observe the living arrangements and relationship with the proposed adopting parent. In Bucks County, home studies are conducted by the Children & Youth Social Services Agency. Following successful completion of all the pre-requisites and filing of the Petition for Adoption, the final step is the adoption hearing in either scenario.
Click here to read more about family law issues between same sex couples.
Defense to Spousal Support
Spousal SupportA claim for spousal support may be denied where the spouse seeking support has engaged in conduct that would constitute grounds for a fault-based divorce. The fault grounds under the Pennsylvania Divorce Code include: (1) willful and malicious desertion without reasonable cause for at least one year; (2) adultery; (3) cruel and barbarous treatment of an injured and innocent spouse; (4) bigamy; (5) imprisonment for at least two years after conviction of a crime; and (6) indignities to the innocent and injured spouse which makes that spouse’s condition intolerable and life burdensome.
Many cases have touched on the issue of whether spousal support is appropriate due to alleged existence of another relationship outside of the marriage. It is up to the spouse who is objecting to a spousal support award to prove a fault ground for divorce by clear and convincing evidence. Adultery is defined as voluntary sexual intercourse with a person other than his/her spouse. Alternatively, indignities may be established even when the evidence does not necessarily support adultery. “Indignities may consist of vulgarity, unmerited reproach, habitual contumely, studied neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule, and every other plain manifestation of settled hate and estrangement.” A single act by a spouse will not support a finding of indignities. Instead, it must be a course of conduct that renders the life of the innocent party intolerable or burdensome. Conduct which takes place after separation is generally not relevant, however, such conduct may be introduced if it will go to show the conduct began before separation.
Click here to read more on spousal support.
Bankruptcy
BankruptcyAs it relates to individuals considering bankruptcy the two most frequently used types of bankruptcy are Chapter 7 and Chapter 13. Chapter 7 provides for the liquidation of assets to satisfy debts owed. All nonexempt assets are gathered by a trustee and sold to pay off debts. Certain assets may be exempted from liquidation depending on federal or state laws. The individual filing for Chapter 7 bankruptcy will need to include a schedule of exempt property with their bankruptcy petition. Most Chapter 7 bankruptcies involve a situation where all the property of the individual is exempt or there are no assets. In that scenario, the trustee makes a report to the court that there are “no assets” for liquidation and no distribution is made to creditors.
Chapter 13 allows an individual to keep their property and provides a three to five year time frame to make payments. This plan is available to individuals with regular income to support the payments. The length of the term for repayment is based on the income of the individual with the longer term being reserved for individuals earning less or demonstrating other “cause” for extension. The benefit of Chapter 13 is the individual is able to retain their property, and potentially have a longer period for repayment and lower monthly payments over the term. Payments are made to a trustee and then the trustee is responsible for distribution to creditors. Both types of bankruptcy generally result in a stay meaning attempts at debt collection stop. Bankruptcy will affect your credit and will be reflected on your credit report for seven to ten years however it may be the best route to a fresh financial start if truly plagued with debt.
Click here to read more about bankruptcy.
Elective Share
EstatesIt is possible for a spouse intentionally left out of the other spouse’s will to still receive a share of the estate in the event of death. Pennsylvania law provides for an “elective share” pursuant to 20 Pa. C.S. 2203(a). This law provides that if a person is still married at the time of their death with no divorce pending, the surviving spouse can elect to receive 1/3 of that person’s estate. There are items that are excluded from the estate instances where an elective share will be applied. 2203(b) states the following exceptions: (1) any conveyance made with the express consent or joinder of the surviving spouse; (2) the proceeds of insurance, including accidental death benefits, on the life of the decedent; (3) interests under any broad-based nondiscriminatory pension, profit sharing, stock bonus, deferred compensation, disability, death benefit or other such plan established by an employer for benefit of its employees and their beneficiaries; (4) property passing by the decedent’s exercise or nonexercise of any power of appointment given by someone other than the decedent.
To simplify, a surviving spouse cannot receive any portion of something that they already agreed to give away by way of previously consenting to it. As it relates to subsections (2), (3) and (4), accounts that have a beneficiary designation will pass to the named beneficiary. Additionally, the surviving spouse waives the right to seek other items they may have been entitled to if they choose to exercise the elective share. The surviving spouse must reduce to writing their intent to exercise the elective share and timely file with the court. Either spouse may waive their right to exercise the elective share before or during the marriage or even after death of their spouse. It is wise to consult with an attorney to see if choosing the elective share is the best outcome if you are left out of a spouse’s will.
Click here to read more on Estates and Probates.
Legal Separation
DivorcePennsylvania does not recognize legal separation in that there’s nothing you would file with the court to establish separation. Instead, it is a date established between the parties that later becomes relevant in establishing grounds for divorce or valuing assets that need to be divided. Separation does not mean the parties have to live separately. Separation is defined as the termination of cohabitation, whether living in the same residence or not. At the latest, it shall be presumed that the parties commenced to live separate and apart on the date that the divorce complaint was served. However, the date of separation can be an even earlier date if one party moves out of the marital home or makes it clear to the other party that the marriage is over by stating so clearly or even reducing it to writing. The effect of establishing “separation” goes toward starting the clock on a two-year separation divorce as well as establishing a cut-off date for valuing the marital estate.
New Jersey does recognize legal separation in the form of divorce from bed and board. Both parties must consent to a divorce from bed and board. The parties will still be legally married but are able to achieve separation financially. Just as with a divorce, the parties can enter an agreement to divide all their marital property or submit to the court for a decision on division. Alimony may also be awarded where appropriate. Health insurance may continue if covered by the other spouse and legal separation is not specified as a reason for termination. A divorce from bed and board can be converted to a divorce from the bonds of matrimony if the parties elect to go through with a full divorce. It can also be revoked such that the parties resume their marriage.
Click here to read more on separation.
The Possibility Coaches
DivorceThe Possibility Coaches are hosting a free lecture titled “How to Emotionally Thrive During & After Divorce!” at our Langhorne office on January 29, 2014. Jon Sattin and Chris Pattay are the partners behind the Possibility Coaches and focus on empowering men and women alike to lead meaningful lives and engage in healthy, successful relationships. Sattin and Pattay started coaching together in 2002 and have labeled themselves as relationship, divorce, and life coaches. As it relates to relationships or divorce, their goal is to help in navigating through the emotional aspects as well as provide a framework for rebuilding to achieve a happier, healthier life. The lecture will be held from 7 AM – 8 AM. Please contact our office for additional information and to reserve your spot for this free event!
Click here to read more about the Possibility Coaches.