Tag Archive for: divorce

Workers Compensation Awards

Pennsylvania law does recognize workers’ compensation awards as marital property subject distribution in a divorce action. In order for the award to be classified as marital, the underlying injury creating the eligibility for workers’ compensation must have occurred during the marriage. Pennsylvania generally utilizes the timing of the receipt of assets for identifying marital property. The court still has the discretion to consider the purpose of the award and other equitable considerations when determining what percentage should go to each spouse in distributing the marital estate.

Drake v. Drake, 725 A.2d 717 (1999), is one of the cases that explains Pennsylvania’s stance on workers’ compensation awards. In the opinion, the court rejects the analytic approach which only allows an award to be marital if it’s intended to replace lost wages during the marriage. It disagreed with the other approach which is to classify an award as separate property if it is intended to replace future lost earnings extending beyond the end of the marriage. In Drake, Husband had sustained an injury in 1985. By 1989 he had entered an agreement with his employer to receive a lump sum commutation award. The parties did not separate until 1993. The court held that surely the right to receive the award had accrued during the marriage and was accordingly, marital property subject to equitable distribution.

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Starting a Divorce Action

The initial step is to get a Complaint filed with the court. The Complaint would include the grounds under which you are seeking divorce as well as any other types of relief requested. For example, your complaint would state if you are asking for a no-fault divorce on the basis of mutual consent or separation or a fault divorce. It may also include counts for equitable distribution if there is marital property, custody if there are minor children involved, and support for minor children or between spouses. There is a filing fee due at the time the complaint is filed.

Once a divorce complaint is filed it must be served on the opposing party before the matter can proceed. Pennsylvania Rule of Civil Procedure 1930.4 discusses acceptable methods of service for all domestic relations matters.

The complaint can be served by personal service or certified mail, restricted delivery, return receipt requested. If the complaint is being served personally, the person effectuating service should complete an affidavit of service indicating when and where the opposing party was served. Personal service can be carried out by any adult that is not a party to the action. The Sheriff can be contacted to effectuate personal service for a fee. There are also numerous private companies that will effectuate service for a fee. The opposing party also has the option to sign an Acceptance of Service form. This is a good option for an amicable divorce. Service in a divorce matter must be accomplished within 30 days of when the complaint was filed. If service is not completed within the applicable time frame, the complaint must be reinstated and a new thirty-day period begins to run.

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Divorce Jurisdiction

Under Pennsylvania law, one of the parties to the divorce action must have been a bona fide resident of Pennsylvania for at least six months prior to the commencement of the divorce. Bona fide residence is defined as actual residence with domiciliary intent or the place where a party intends to return to if temporarily absent from the state. Domicile is the place where a person has his or her true, fixed, permanent home with the intention of returning after any absence. You can look at address, driver’s license, voter registration and tax filings for confirmation of their permanent residence.

An action for divorce should be brought in the county where one of the party resides especially if there is real property involved. There are two exceptions allowing a divorce action to proceed in a different county including by mutual agreement of the parties in writing or by participating in the action started in a different county.

Parties may elect to file in a different county for a simple case to benefit from lower filing fees. If two divorce actions are commenced within 90 days of each other, the county where a party resides or where the last marital residence was located gets to determine which county should handle the matter. If neither county is the location of the last marital residence and no party resides in either county, the county that received a complaint in divorce first can make the determination as far as which county will proceed.

A divorce action that is filed in the wrong county may need to be transferred to the county where the bulk of the property is located or where the children reside for custody or where one of the parties reside for support. This will likely result in the expense of having to file a new complaint in the appropriate county as well as the expense and delay of petitioning to have the matter transferred.

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Common Law Marriage

A common law marriage is distinguished from a regular marriage in that no marriage license is required. Instead, parties just have exchange words of intent to be married and hold themselves out to their community as a married couple. Often, the parties also lived together for some length of time as well. Common law marriage was abolished in Pennsylvania in 2005. Parties who met the requirements for common law marriage prior to 2005 can still be recognized as valid marriages. Once a common law marriage is established, it can only be resolved by divorce just as with any regular marriage. Moser v. Renninger, 2012 PA Super 59 (2011) discusses how to evaluate whether a valid common law marriage exists.

In Moser v. Renninger, Wife filed a divorce complaint on November 19, 2010 stating that her and Husband had entered into a valid common law marriage in 1985. Husband subsequently filed an Action for Declaratory Relief asking the court to declare that no common law marriage ever existed. Initially, the court held a common law marriage was in fact established on June 8, 1985. Husband immediately sought to appeal the court’s finding but his appeal was denied on the basis that it was premature. The court held that since the issue of whether there was a common law marriage or not was raised in the context of the divorce, Husband could not file an appeal until the divorce matter was final. The court also noted that if the issue of common law marriage is raised outside of a divorce, an immediate appeal would be appropriate.

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Discovering Assets and Income in Divorce

It is not uncommon for parties contemplating divorce to try to hide assets in an attempt to keep them out of the marital estate that will be up for distribution. One of the biggest red flags as far as potential hidden assets is if the spending habits or lifestyle of a party is way more than would be expected based on their reported income. You should also be wary of a party who owns their own business. If they deal in cash they can easily hide money. Additionally, what they report for tax purposes is not always indicative of income available for spousal or child support. It complex cases it may become necessary to hire an expert to analyze income flow. Top level executives may receive different forms of income. Examples include stock options, bonuses, car allowances, and deferred compensation plans. Even military members often have a compensation package that goes beyond their base salary.

Discovery is a good start in seeking to track down assets, hidden or otherwise. Tax returns and bank statements are good to review in terms of sources of income as well as where the income is going. A tax return can show rental income, interest on bank accounts, dividends on stock, etc. Bank statements can show any transfers of money and identify where it went to. Parties can subpoena documents directly from the custodian of the documents if the spouse will not cooperate and turn them over. If these initial avenues of discovery do not yield the desired results, a party will have to make a decision as to whether to invest more money in the chase for hidden assets. Any party that anticipates hiding or dissipating assets may become a problem during the pendency of the divorce should obtain a court injunction right away preventing the dissipation or transfer of any marital assets.

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Steps in Equitable Distribution

Equitable distribution is the term used in Pennsylvania as it relates to division of marital property in a divorce. Marital property will consist of nearly everything acquired in either party’s name from the date of marriage through the date of separation. Equitable distribution does not mean an automatic 50/50 split of all marital property. Instead, the statute on equitable distribution sets out thirteen (13) factors to be considered when seeking to set percentages for distribution on a case-by-case basis. In any divorce involving equitable distribution, the parties should first identify all the property to be considered. Specifically, Pennsylvania Rule of Civil Procedure 1920.33 discusses the requirement of each party filing an Inventory. The Inventory should list all marital assets and debts at issue. An Inventory must be filed prior to requesting a hearing on equitable distribution.

The second part of Rule 1920.33 goes over the requirements for a pre-hearing statement. This statement is to be prepared when your case is ready to go to court on equitable distribution (i.e. after you have grounds for divorce). Again, you will need to list all marital assets and debts, however, you should also include more detailed information regarding the assets and debts such as their values or balances at date of separation and present. Corroborating documentation should be attached to the pre-hearing statement as exhibits. Appraisals may be needed to confirm the fair market value of real property or defined benefit retirement plans such as pensions. Pre-hearing statements should be filed at least sixty (60) days prior to a scheduled equitable distribution hearing. It is important to work with an experienced family law attorney when dealing with equitable distribution matters to ensure all marital property is identified and subsequently submitted to the court in a timely fashion.

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Health Insurance in Divorce

One frequent question in the context of divorce is what will happen to health insurance coverage. Generally, a spouse should not drop the other spouse while a divorce is pending. Health insurance is often addressed in the context of support and spouses are obligated to provide support for each other during the marriage. A support order can mandate a spouse to continue to provide health insurance. The obligation to carry health insurance for the other spouse ends at the entry of the final divorce decree. If you are unable to obtain alternate health insurance on your own right away you can look into COBRA coverage but this can be very expensive. More affordable options may be available on the healthcare marketplace.

If there are children between the parties, the children may remain under the health insurance coverage presently provided. There may be an adjustment to any child support award based on who is paying the premiums on the health insurance for the children. Child support will end when the child is eighteen or graduates high school, whichever is later. After court-ordered child support ends there is no longer a requirement for the parents to share the cost of the child’s health insurance however a parent may elect to continue to provide coverage for the child up until the maximum age of 26. Parties with private agreements can contract to continue to share this cost.

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Steps to Take Post-Divorce

Receipt of the divorce decree does not necessarily mean nothing else needs to be done. In a case with a marital residence, the parties may still need to sell the house or one party may have a certain window for refinancing the property and buying the other party out. If you are a party retaining a marital residence by agreement or court order, you can change the locks once the property is formerly awarded to you. The party vacating the residence should be sure to change their address with the post office and update other accounts accordingly. In a case where retirement benefits are being split, the parties may need a qualified domestic relations order or QDRO for short.

A QDRO is a document used to rollover a portion of one party’s retirement plan/benefit to the other party. The benefit of a QDRO is that it allows a tax-free transfer of the funds from one party to their new or soon-to-be ex-spouse. The receiving spouse would then be taxed as they withdraw the money as the tax laws provide. The QDRO ultimately needs to be signed by both parties and the court prior to being sent to the plan administrator for implementation.

You will benefit from having an attorney review the terms of the QDRO before signing off on it and submitting it to the plan. If you have been paying support to your spouse, you should notify Domestic Relations if the support is ending or if it is converting to alimony. If switching to alimony, you should confirm the amount if there is any change from an existing charging order. You should also notify Domestic Relations of the term of the alimony.

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Reconciliation

Pennsylvania allows a no-fault divorce on the basis of one year separation period. Separation is defined in Section 3103 of the Divorce Code as follows: “Cessation of cohabitation, whether living in the same residence or not. In the event a complaint in divorce is filed and served, it shall be presumed that the parties commenced to live separate and apart not later than the date that the complaint was served.” 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. Any reconciliation between parties can negate a prior separation period. Specifically, if a party is pursuing a divorce on the grounds of separation, a reconciliation may result in a new date of separation date and hence a new one-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. For example, isolated instances of sexual relations during a separation will not alone establish a reconciliation. Additionally, residing in the same home does not alone establish reconciliation. The court would examine the facts in each case and evaluate whether or not there was a full-blown resumption of the marital relationship. In Britton v. Britton, 400 Pa. Super. 43 (1990) a reconciliation was recognized 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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Separation for Divorce

Separation is one of the no-fault grounds for divorce in Pennsylvania. A no-fault divorce simply means there has been an irretrievable breakdown of the marriage. Grounds for a divorce can be established if a one year separation period is established. One party would need to file an affidavit of separation setting forth the separation date. This affidavit is to be served on the other party along with a counter-affidavit. If no objection is made by the other party the date of separation as stated in the initial affidavit is accepted.

Separation does not mean the parties have to actually live separately from another. Many parties still reside in the same home but are considered to be “separate” based on the definition provided by the Divorce Code. Section 3103 of the Divorce Code defines “Separate and apart” as follows: Cessation of cohabitation, whether living in the same residence or not. In the event a complaint in divorce is filed and served, it shall be presumed that the parties commenced to live separate and apart not later than the date that the complaint was served.” Accordingly, the date the divorce complaint is filed will be accepted as the latest date of separation regardless of whether the parties continue to live together or not. However, the date of separation can be an even earlier date such as the date one party moves out of the marital home. Alternatively, even if the parties continue to reside together, a date of separation can be established when one party makes it clear to the other party that the marriage is over by stating so clearly or preferably putting it in writing. Be sure that the other party is keenly aware of your intended separation, especially if you will continue to reside together and/or hold off on filing for divorce.

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