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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New Procedure for Protection from Abuse Cases
Protection from AbuseThe Superior Court of Pennsylvania recently made a decision that will change how Protection from Abuse (PFA) cases will proceed. Previously, as a matter of practice, a PFA petition once filed would be reviewed by the Judge and then a decision could be made as to whether a temporary PFA order was warranted pending a final hearing just based on review of the petition. In Ferko-Fox v. Fox, 2013 PA Super 88 (2013), the Superior Court ruled that the practice of granting temporary orders in this fashion does not meet the requirements of due process as required by the PFA statute. Specifically, 23 Pa. C.S. 6107 (b) requires the court to conduct an ex parte hearing prior to determining if a temporary order is warranted.
Based on the Fox decision which demands strict compliance with the PFA statute, a person seeking a PFA will be required to go before a Judge after filing the petition in order for a brief hearing to be held. This is required in order to safeguard the defendant’s due process rights. According to the Superior Court, those due process rights are not met unless the court takes the time to question the moving party as to the truth of their petition. Arguably, having the moving party appear before a Judge and be sworn in reduces the likelihood that they will make exaggerated or false allegations of abuse. Additionally, the hearing gives the Judge the opportunity to view the demeanor of the moving party and determine his or her credibility as well as see first-hand any physical evidence of abuse. The only exception the court will recognize to this requirement of an ex parte hearing is if there are exigent circumstances and the moving party is unable to appear.
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Division of Military Benefits
DivorceA spouse is entitled to their share of the military pension no matter how insignificant. Under the 10 year rule, where the parties have been married for 10 years and the servicemember has accumulated 10 years of service, DFAS (Defense Finance and Accounting Services) can pay the spouse directly. When the 10 year rule has not been met the servicemember will be responsible to pay the spouse themselves. This, of course, makes it harder to enforce the distribution of the pension. A court can only award a division of a military pension if it has jurisdiction over the servicemember via residence, domicile or consent. Only disposable retired pay can be divided. This is the total monthly pay less certain deductions. The highest percentage a spouse can receive of the military retired pay is 50%. The spouse will stop receiving military pay when the service-member dies.
In order to continue to receive benefits after the death of the servicemember, a Survivor Benefit Plan (SBP) must be in place. The plan is available if both parties elect it and pay the required premium. It will allow the spouse to continue to receive retired pay post-death of the servicemember. The surviving spouse is entitled to 55% of the retired pay received by the retiree. To ensure the spouse receives the SBP as a former spouse, you must complete a deemed election specifying that the spouse will be named as a former spouse under the SBP within one year of the dissolution of the marriage.
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New Support Guidelines
SupportSeveral changes to the state-wide support guidelines will take place in August 2013. First and foremost, the basic child support schedule will be updated to reflect newer economic data. The basic child support schedule is a table that references the combined monthly net income of the parents and the number of children to determine the appropriate support award. There is a presumption that the amount of support indicated by the support schedule is the correct amount. In addition to updating the entire support schedule, the Self-Support Reserve has also increased from $867 a month to $931 a month. This amount reflects the 2012 poverty level for one person. The self-support reserve is the minimum amount of income that should be retained by the party paying support to ensure they can support themselves and to provide an incentive to continue working.
Another change set to take place in August relates to the calculation of net income. Generally, the rules provide for a calculation including the net income of both parents, however, Rule 1910.16-2 will soon provide that two calculations be done in low-income cases. First, a calculation should be done using only the income of the party that will be paying support. Then, a second standard calculation should be done utilizing the income of both parties. The party owing support would be responsible to pay the lower amount of the two calculations. This revised rule is meant to address issues where the party owing support is low-income but the party to receive support has significantly greater income.
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Exclusive Possession of Marital Residence
DivorcePursuant to 23 Pa. C.S. § 3502(c), the court has the express authority to award exclusive possession of the marital residence to one or both parties during the pendency of the divorce. This provision was added to the law in 1990. Prior to that, the court had determined it had the authority to grant exclusive possession of the marital residence under the “full equity power and jurisdiction of the court” found at 23 Pa. C.S. §3323(f). This provision gives the court the authority to issue injunctions or other orders necessary to protect the interests of the parties. Laczkowski v. Laczkowski, decided in 1985, was the first case to hold that the court could award exclusive possession of the martial residence during a divorce. 344 Pa. Super. 154 (Pa. Super. 1985). In Laczkowski, the home was to be given to the spouse having physical custody of any minor children.
Other cases have clarified and expanded the instances under which exclusive possession may be ordered. In Uhler v. Uhler, the court indicated exclusive possession should only be awarded sparingly. 428 Pa. Super. 630 (Pa. Super. 1993). Uhler also pointed to the emotional welfare of children as the most important consideration. In Vuocolo v. Vuocolo, the court held an award should be based not only on the needs of minor children, but also the age and health of the parties and their financial needs and resources. 42 Pa. D. & C. 398 (1987). In Merola v. Merola, the court granted exclusive possession in an instance where there were no minor children but the wife was vulnerable and confined to a wheelchair. 19 Pa. D. & C. 4th 538 (1993). In contrast, in Duzgon v. Duzgon, the court did not grant exclusive possession based on wife’s allegations of tension in the home because of husband’s phone calls to his girlfriend. 76 Pa. D. & C. 4th 538 (2005). The court’s rationale was that there was no abuse between the parties and hence no clear need for husband to be excluded from the home. In sum, an award of exclusive possession is a harsh remedy that will not be awarded without clear need and is more likely to be awarded where minor children are involved.
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Physician Verification Form
SupportIn 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
SupportIn 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
Child CustodyThe 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 liteAlimony 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
DivorceMany 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
JurisdictionA 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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