Physician Verification Form

In the event that a party in a support matter asserts an inability to work due to medical issues, the support rules now require that a physician verification form be completed. Pursuant to Pennsylvania Rule of Civil Procedure (Pa. R.C.P.) 1910.29 (b), regarding evidence in support matters, the physician verification form should be completed by the party’s physician and submitted at the time of the support conference. If the party receives Social Security disability or workers’ compensation benefits, proof of income from those sources can be submitted in lieu of the physician verification form. A sample of the actual form to be used is contained in Pa.R.C.P. 1910.29(b)(3).

If the support matter does not settle at the conference and a hearing will be necessary, the physician verification form can be admitted into evidence if certain requirements are met. First, the party intending to use the physician verification form must serve a copy on the other side within 20 days from the conference date. The other party then has 10 days from receipt of the physician verification form to file an objection. If no objection is received, the form may be accepted into evidence without requiring the physician’s testimony. If an objection is made, the physician would need to testify in court and the court would determine how the cost of the testimony will be divided among the parties.

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Support Exceptions

In a support matter, the incomes of the parties will be used to calculate an appropriate award based on the support guidelines applicable throughout the commonwealth. In the event there is a disagreement over the entry of an interim support order, a party has the option of filing exceptions. Pursuant to Pa. R.C.P. 1910.12, parties have twenty (20) days from the entry of an order to file exceptions. Exceptions may address objections to evidence, findings of facts, conclusions of law, or any other matters occurring during the hearing. Each issue should be raised separately as an exception. Each exception should be concise and without lengthy discussion. Issues that are not raised in the exceptions are deemed waived. Examples of appropriate exceptions would include claims that the incomes and/or expenses were not correctly calculated, special circumstances were not considered, or there was an error in assigning an earning capacity. It is not appropriate to file exceptions simply because you do not agree with the guideline amount.

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If a party raises exceptions, any other party in the matter may also file exceptions within twenty days of receiving the initial exceptions. A hearing will be held to hear from the parties on the exceptions raised and a final order will be entered at that time. If no exceptions are filed, the initial support order becomes a final order after the twenty-day window has passed. Once an order is final, an appeal would be the avenue to challenge the order. An appeal would need to be filed with the Superior Court within thirty days of the final order.

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Court Conciliation and Evaluation Service

The Court Conciliation and Evaluation Service, or CCES for short, is a program in Bucks County that conducts custody evaluations for pending court cases. Parties to a custody matter would participate in a series of sessions with an assigned evaluator. The goal of the program is to facilitate an ideal co-parenting relationship that provides for the best interests of the child(ren) involved. The end result of the program is either an agreement on custody or a full clinical report including a recommendation which is then provided to the court. In addition to the parents and the children, additional parties can be interviewed as part of the CCES process based on their role in the parties’ lives or unique insight they may be able to provide. On average, it takes 6-8 weeks for the process to be completed with the report due to the court within 45 days of the final session. An expedited evaluation which is completed in a matter of days is possible only in emergency situations or when one or both of the parties live out-of-state.

As far as procedure, parties are generally referred to CCES following the initial custody conference if the parties are agreeable; otherwise, the parties may be ordered to participate following a hearing. A referral form is completed which includes contact information for both parties as well as case information. This form is submitted to CCES. Both parties are responsible to submit an application fee directly to CCES prior to the start of the sessions. Parties are each responsible for the fee for the evaluation at the first meeting with the evaluator. Parties should also bring any documents they want the evaluator to review to the first meeting. The CCES report is a confidential document and cannot be dispersed directly to the clients based on the sensitive information it contains. Represented parties can view the report at their attorney’s office. Unrepresented parties can make arrangements to view the report at the custody master’s office. A custody hearing can be requested after the report is received instances where an agreement could not be reached during the process.

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Alimony Pendente Lite

Alimony Pendente Lite, or APL, is spousal support while the divorce is pending. A party may petition for APL at the same time as the divorce complaint or any time thereafter prior to the entry of a final decree. The purpose of APL is to ensure each party has the ability to sustain themselves during the divorce. A party seeking APL should be ready to prove they lack sufficient property to provide for their reasonable means and are financially unable to support themself during the pendency of the divorce litigation. It is the income-dependent spouse who would have the opportunity to receive APL.

Pennsylvania Rule of Civil Procedure (Pa. R.C.P.) 1910.16-1(c) addresses awards for spousal support and/or APL and requires the court to also consider the duration of the marriage in making any award. This is to ensure one party does not benefit from a significant support award in the context of a very short marriage. Additionally, it provides that an award for spousal support and an award for APL cannot be in effect at the same time.

Pa. R.C.P. 1910.1-4 lays out the calculation to be used in determining an award. In a case with children, the APL award will be based on a 30% difference of the parties’ net incomes and will account for the child support obligations of the case when factoring the net incomes. In a case without children, the APL award will be based on a 40% difference of the parties’ net incomes. An award of APL is not appealable until after the divorce is final. The reason for that being that APL is not considered a “final order” as is required before an appeal can be taken.

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Mandatory Waiting Period for Divorce

Many states require some waiting period between when a divorce complaint is filed and when a divorce will be granted. In Pennsylvania, a no-fault divorce may be granted after a waiting period of 90 days provided both parties consent to the divorce at the conclusion of the waiting period. This waiting period is often referred to as a cooling-off period. It is arguably utilized in many states to give the parties an opportunity to reflect on the severity of the decision to get a divorce and/or seek marital counseling to see if the relationship can be saved. At this point, almost half of the states have some waiting period between when you file and when you can be divorced.

It is unclear if there is any correlation between longer waiting periods and fewer divorces. New Jersey has one of the longer waiting periods for a no-fault divorce at 18 months and also has one of the lowest divorce rates in the country. On the other hand, Arkansas also imposes an 18-month waiting period and has one of the highest divorce rates. Perhaps the key to determining the impact of the waiting periods would be a study into how many couples do end up reconciling during the waiting period if reconciliation is the ultimate goal behind the divorce laws. Pennsylvania does specifically indicate its policy is to “encourage and effect reconciliation and settlement of differences between spouses” as the “protection and preservation of the family is of paramount concern.” 23 Pa. C.S. 3102.

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Recognition of Foreign Divorce Decree, Court Order or Contract

A U.S. Court will recognize a foreign divorce decree under the doctrine of comity so long as the party has established domicile in the foreign country. As discussed in Hilkmann v. Hilkmann, [c]omity is a recognition which one nation extends within its own territory to the legislative, executive, or judicial acts of another. It is not a rule of law, but one of practice, convenience, and expediency. Although more than mere courtesy and accommodation, comity does not achieve the force of an imperative or obligation…Comity should be withheld only when its acceptance would be contrary or prejudicial to the interest of the nation called upon to give it effect. 2003 PA Super 25 (2005). A U.S. Court will invoke comity by its discretion and will usually look at two factors: whether the foreign court had jurisdiction, and whether fair procedures were used.

A U.S. Court will look to domicile as a basis for establishing jurisdiction. In Commonwealth v. Doughty, the court held “[i]t is an established and familiar principle that judicial power to grant a divorce is founded on domicile. In the absence of domicile by at least one of the parties to the action, the Court has no jurisdiction over the cause and its decree will consequently, not be endowed with extraterritorial effect.” 187 Pa. Super. 499 (1958). Accordingly, “[a]n absolute prerequisite to judicial recognition of an out-of-state divorce is that the plaintiff must have resided in the state or country for a minimum period of residency as determined by local authority and that the residency be accompanied by domiciliary intent, i.e., an intent to remain the foreign jurisdiction.” Sargent v. Sargent, 225 Pa. Super. 1 (1973). These principles extend beyond divorce and hold the same for other family law court orders as well as contracts.

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Discovery in Family Law

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. Discovery is allowed in alimony, equitable distribution, counsel fee and expense proceedings and in complex support cases without leave of court. The information requested must be relevant to the case pursuant to Pa. R.C.P. 4003.1. In divorce, the court gives much leeway as to what is relevant since the factors for equitable distribution allow for broadness.

Formal discovery methods must adhere to the Rules of Civil Procedure and the acceptable methods include interrogatories, depositions, production requests, subpoena to produce things and/or documents, and request for admission. Interrogatories and production request are the most frequently used methods of discovery in divorce 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 utilized as well when it is necessary to get information directly from the source in the instance a party does not have it or will not cooperate in turning it over. Due to the expense to the parties for discovery, lawyers will sometimes agree to exchange discovery informally. This generally involves the lawyers deciding what information is relevant and then gathering that information and sending it to the other side in exchange for receiving documentation that they need from the other side that is also relevant.

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Implications of Rape in Custody/Parental Rights

Pennsylvania has some of the best protections nationwide in the instance of mothers who opt to have a child following a rape. First, there is the potential that the rights of the natural father/perpetrator of the rape can be terminated. Pursuant to 23 Pa CS 2511(a), which lays out the grounds on which a parent’s rights can be involuntarily terminated, paragraph (7) provides for termination where “the parent is the father of a child conceived as a result of rape or incest.” While it is a plus that the law specifically allows termination of parental rights in a rape case, a party petitioning for involuntary termination will still need someone willing to adopt the child simultaneously with the termination which may cause a dilemma.

In addition to provisions regarding involuntary termination of parental rights, rape is also expressly addressed in Pennsylvania’s custody laws. Under 23 Pa CS 5329, the court is to consider criminal convictions, not just official charges, when making a custody decision. However, while the court must consider a rape charge, that doesn’t mean it can’t grant the father/perpetrator any custody time. Instead, the rape charge would just be one of several factors for the court to consider in determining what’s in the child’s best interests as is required for all custody decisions.

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Factors in Equitable Distribution

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. Those factors are listed in 23 Pa C.S. 3502 and include the following:

(1) Length of the marriage; (2) Any prior marriage of either party; (3) Age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties; (4) Contribution by one party to the education, training or increased earning capacity of the other party; (5) Opportunity of each party for future acquisitions of capital assets and income; (6) Sources of income of both parties, including but not limited to, medical, retirement, insurance or other benefits; (7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as a homemaker; (8) Value of the property set apart to each party

(9) Standard of living of the parties established during the marriage; (10) Economic circumstances of each party at the time the division of property is to become effective; (10.1) Federal, State and local tax ramifications associated with each asset to be divided, distributed or assigned, which ramifications need not be immediate and certain; (10.2) Expense of sale, transfer or liquidation associated with a particular asset, which expenses need not be immediate and certain; (11) Whether the party will be serving as the custodian of any dependent minor children

The remainder of 23 Pa C.S. 3502 goes on to discuss the courts powers relating to who can reside in the marital home pending the divorce, maintaining life insurance policies, interim partial distributions, and enforcement powers in the event of contempt of a court order on equitable distribution. Parties should keep these factors in mind when fashioning a settlement agreement of their own. If the parties have to go to court for equitable distribution, they will be required to submit a statement beforehand laying out what they allege is the marital property at issue, how the factors listed affect their case, and what they are ultimately seeking as an “equitable” distribution.

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Reconciliation Pending Divorce

Potential reconciliation between parties going through a divorce can have an impact on the course of the divorce. Specifically, if a party is pursuing a divorce on the grounds of two-year separation, a reconciliation may result in a new date of separation date and hence a new two-year waiting period. Case law has distinguished what actions/behavior will be considered a successful reconciliation, hence tolling a new period of separation, 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. It requires more than just remaining in the same house overnight or for the weekend or taking a week long trip together. This is still true even if the parties engage in sexual relations. Instances of sexual relations during a separation will not alone establish a reconciliation. The public policy of the Commonwealth is to encourage a reconciliation where possible and so it is reluctant to punish parties for unsuccessful reconciliations by causing the period of separation to have to start again because of a failed attempt.

In Thomas v. Thomas, 335 Pa. Super. 41 (1984), the Court expressed its agreement with neighboring states who treat the issue of reconciliation similarly. For example, in a New Jersey case the court held that a four week trial reconciliation period did not defeat the previously established separation date (Brittner v. Brittner, 124 N.J. Super. 259 (1973)). In Delaware, the law provides that any reconciliation attempts that occur prior to the 30 days immediately preceding the hearing on divorce will not affect the initial date of separation. Accordingly, attempts at reconciliation may not necessarily change the date of separation for the purposes of the divorce. The court would 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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