In a divorce, especially a long term marriage, a pension can be a very valuable asset. Assets accumulated during the marriage are marital assets, regardless of whose name the asset was accumulated in. Retirement accounts, including pensions are marital assets to the extent that they were acquired during the marriage. If a portion of the pension was accumulated prior to the marriage or after the marriage, the court will use a coverture fracture to determine the marital portion. This means the number of years married over the total years that the pension was accumulated will be marital. In addition, many pensions have a survivor benefit that should also be considered. A survivor benefit is an election when the pension is taken that reduces the monthly pension payment based on the election that is chosen. Depending on the value of the pension and the health of the parties, the divorcing spouse may want to pursue the survivor benefit whereby they secure a monthly payment in the event of pension earner’s death which could be various percentages of the monthly pension depending on the election that was taken. Instead of doing a percentage of the marital portion, in some cases, it may be beneficial to have the pension appraised and the survivor benefit appraised to offset the value with other assets. Usually a private company will be hired to do this type of valuation.
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In Pennsylvania, many people hear the words no-fault divorce and expect that it is going to be simple. Most people in Pennsylvania will get divorce on no-fault grounds, even when there has been infidelity or abuse. No-fault divorces refers to the grounds for divorce, meaning you either both sign consents to a divorce, or after two years of separation, you obtain grounds based on a two year separation. It does not necessarily mean that it will be simple. The complexity depends on the assets that have accumulated during the period in which the two parties are married as well as the difference in the incomes. If the parties are seeking to allocate assets between them or one party is seeking alimony, it does not mean that you no-fault divorce will be simple. You will need to either come to an agreement on these issues or you will have to go to court. The simple divorce, however, is the divorce where there are no assets and there is no alimony sought. In those type of cases, you can get divorced relatively quickly after both parties consent or the two year period has passed. You will also not have to go to court and you can process the divorce through the mail. This is true even if there are children since custody is handled separately from the divorce.
If you are served with divorce papers, you will want to first, keep them. Do not throw them away even if you are upset or angry. You can get a copy from the courthouse, however, if you have already done this. You are considered served on the day you receive them even if you tell the person who tries to hand it to you that you do not want the divorce papers. Your service date is an important date as it starts the period of time in which you have to wait if you are doing a mutual consent divorce. You will want to have an attorney look at the papers that you received so that they can determine for you if you need to response. The papers will always say you only have so many days to respond. Do not panic. It is unlikely that you will lose rights if you do not answer them within that time frame. Do, however, consult an attorney, who will be able to explain the legal jargon to you and let you know whether a response is required. A response is only usually required if you need to raise new claims such as spousal support or alimony or equitable distribution. Most attorneys will offer a consultation either by phone or in their office, and oftentimes, this initial consultation will be free. If you need support, you may bring someone with you to the appointment or have them on the phone with you. If you are served papers, in most cases, you will want to freeze any joint debt and secure any joint assets, but you may also want to discuss it with your attorney. Being informed and knowing what to expect is an important part of getting you through the process. An attorney can discuss with you what you can expect with respect to distribution of assets, support, and also the time frame in which things may happen or how things may be delayed.
Oftentimes parties are pro se, meaning they represent themselves. Sometimes, it can be frightening to receive paperwork in the mail that you do not understand or fear may end upwaiving your rights. In a divorce you may receive one of two types of a waivers. One is called a waiver of Notice of Intent to Request a Grounds Order and the other is a Waiver of Notice of Intent to Request a Divorce Decree. What these forms mean if you sign them are that you are giving up the 20 day notice required to let you know either a grounds order or decree will be entered. In the case of the decree, you need to make sure that you have reached an agreement on everything before you sign it. Otherwise, if you did not make claims for alimony or to divide property, they will be waived if you sign that and a decree gets entered. If you are served with one and have not raised claims but want to, you will need to do that rather quickly. For a waiver of notice of intent for a grounds order, it means grounds will be entered. You are not divorced just because grounds are established, however, you may lose rights to inherit if your spouse dies and you may want to make sure discovery is done. If you are ready to move to your divorce hearing, then signing a waiver for the grounds will not hurt you.
Most parties pursuing divorce will choose to proceed with no-fault grounds for divorce. A no-fault divorce simply means there has been an irretrievable breakdown of the marriage. There are two different ways to establish an irretrievable breakdown of the marriage under the Divorce Code. First, both parties may consent to the divorce after 90 days from when the complaint was filed and served. This is referred to as a 90-day mutual consent divorce. Alternatively, if one party won’t consent, the other party can move forward after the parties have been “separated” for two years. This is referred to as a 2-year separation divorce.
Procedurally, both parties must sign an affidavit of consent for a mutual consent divorce under Section 3301(c). For a divorce based on two year separation under 3301(d), one of the parties must file an affidavit of separation and then serve the other party with the filed affidavit as well as a counter-affidavit.
The counter-affidavit allows the other party to object to the date of separation or the assertion that the marriage is irretrievably broken. In addition, the counter-affidavit now also allows the other party to signal to the court the status of any economic claims pending. Specifically, a party can indicate if they wish to claim economic relief prior to finalization of the divorce, or if economic claims have been raised but not yet resolved. The right to claim economic relief incident to the marriage relationship is lost once a final divorce decree is entered. The counter-affidavit alerts the parties of the necessity of filing timely claims as well as how they should be filed. If the counter-affidavit is not returned within 20 days the divorce may proceed based on the date presented in the 3301(d) affidavit. A hearing on economic claims can be requested if issues have been raised; otherwise, a divorce decree can be entered.
Section 3308 of the Divorce Code provides for an action in divorce where the defendant is suffering from a mental disorder. In practice, however, seeking a divorce where one of the parties is mentally incapacitated can raise unique issues. The Pennsylvania Rules of Civil Procedure discuss the steps that must be taken when one of the parties is incapacitated. An incapacitated person is defined as an “adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that the person is partially or totally unable to manage financial resources or to meet the essential requirements for physical health and safety.” Pa. R.C.P. 2051. If a person is determined to be incapacitated a guardian ad litem must be appointed to act on that party’s behalf.
If a party becomes incapacitated after a matter has commenced, the matter should be stayed pending appointment of a guardian. The court shall appoint a guardian if it ascertains that the Plaintiff is incapacitated. If a Defendant becomes incapacitated during the proceeding, the Plaintiff should petition for appointment of a guardian. Once a guardian is in place, the matter can proceed. The guardian is tasked with acting for the benefit of the incapacitated party as a fiduciary. A guardian can be replaced by motion of the other party or by the court.
A creditor may run into trouble in seeking to pursue their interest through real property of a married couple. Lappas v. Brown, 335 Pa. Super. 108 (Pa. Super. 1984), established that property subject to an order of court is in custodia legis, or under wardship of the court, pending compliance with the order. In Lappas, the underlying dispute involved a defense attorney who confessed judgment to get payment for legal services rendered. Meanwhile, the Commonwealth had seized all available funds as derivative contraband. Ultimately, the attorney was unable to collect his fee due to the existing order of court regarding the forfeiture. City of Easton v. Marra, 862 A.2d 170 (2004), expanded the principle of in custodia legis to actions for divorce and equitable distribution. In City of Easton, a divorce proceeding had been pending since 1988 when the City sought collection of unpaid taxes by forcing a tax sale of the real property the parties owned. A motion to stay the sheriff’s sale was granted since the property remained in custodia legis pending final resolution and equitable distribution per the parties’ divorce action.
Another example of the principle in the context of a divorce action was illustrated in Fidelity Bank v. Carroll, 416 Pa. Super. 9 (Pa. Super. 1992). Husband had a judgment entered solely against him for unsecured loans which went into default. The bank sought to put a lien on the marital residence however the Court held the bank’s lien could not attach to the marital home since the marital home was subject to equitable distribution in the pending divorce action. “Accordingly, the Bank could acquire no greater interest in the marital home than that of [Husband]. Here, it turns out that [Husband] has no interest in the marital home. Therefore, the Bank also has no interest in the home.” Id. at 14. In summary, a creditor cannot touch the interest of a non-debtor spouse, e.g. their share of a marital home.
Earlier this year a bill was introduced to the Pennsylvania General Assembly which would affect the Divorce Code. House Bill 380 proposes amending Section 3301(d) of the Divorce Code to allow divorce on the basis of separation for a one year period as opposed to the current law which requires a two year separation period. Representative Tara Toohil proposed the bill and cites several reasons for the change. First, reducing the duration for divorce will reduce the turmoil for minor children. There is consensus in the psychological field that continued conflict of the parents is the primary influence on the well-being, or lack thereof, of the children. Second, longer divorces allow for additional litigation and prolonged emotional strain. The third reason offered in support of the bill is the lack of any economic benefit by continuing with a two year separation period. For example, any alimony award will generally be reduced by the period of support received while the divorce was pending such that there is no benefit to a longer separation period.
Finally, Representative Toohil points out that all surrounding jurisdictions already allow for divorce on a shorter time frame. Specifically, New York, Ohio, and Maryland require only one year of separation. New Jersey and Delaware only require six (6) months of separation. The Pennsylvania Bar Association recently submitted a brief to the House Judiciary Committee in support of the bill. The brief also discusses that there has actually been a decrease in divorce since many neighboring states have allowed divorce after only a minimum period of separation. The final assertion is that there is absolutely no benefit to requiring a longer separation period. Instead, a shorter separation period will allow the parties to move on with their lives quicker with less emotional and financial strain as well as promote the best interests of minor children in decreasing the period of uncertainty.
Montgomery County has a different procedure regarding grounds for divorce and equitable distribution matters. Once grounds are established and discovery is complete, the moving party should file a Motion for Entry of Grounds and Appointment of an Equitable Distribution Master. The moving party will now have to pay a $400 fee at the time the Motion is filed. The Motion must certify that all discovery is complete. A list of all the assets and debts at issue along with their corresponding values must also be included. Finally, the initial pre-hearing statement should be attached including a completed Inventory and Appraisement. Once the Motion and all its required accompaniments are filed, a copy of the same should be served on the other party. A Certificate of Service should then be completed and filed with the court.
The non-moving party has forty-five (45) days from the date of service to file their own pre-hearing statement and Inventory and Appraisement. Similarly, a copy should be served on the moving party and a Certificate of Service should be filed with the court. The non-moving party must also certify that all discovery is complete and include a list of all assets and debts with values as of the date of filing the certification. The failure of either party to comply the Rule may result in sanctions such as barring testimony or prohibiting introduction of certain evidence at the equitable distribution proceedings from the party that failed to comply. Where equitable distribution, alimony or counsel fees is not at issue or has settled by agreement and grounds have been established, the moving party can file a standard praecipe to transmit the record for divorce decree.
Once a divorce decree is issued, entitlement to health benefits as a spouse terminates. COBRA was enacted in 1986 and allows temporary healthcare continuation at group rates for ex-spouses. The ex-spouse is responsible for the entire premium. In that regard, it will likely be more expensive than the rate for the employee who is likely receiving an employer contribution toward the premium. Employers with 20 or more employees are required to offer COBRA coverage. The maximum coverage period in the event of divorce or legal separation is 36 months.
A new alternative to COBRA coverage is the healthcare marketplace. Enrollment is generally at the start of the year however, enrollment is possible throughout the year if there is a qualifying event. Losing prior coverage as a result of divorce, having or adopting a baby, and getting married all constitute qualifying events. The marketplace will generate the plans available based on household income, location and tobacco use. There are four plans ranging from bronze plans which cover 60% of expenses to platinum plans which cover 90%. The monthly premium correlates with the percentage of out-of-pocket expenses that will be covered. The lower the monthly payment the higher the out-of-pocket expenses will be. All plans include routine doctors visits and preventative care, prescriptions, hospitalization and maternity care.
Medicaid is also an option. Eligibility for Medicaid coverage is based on adjusted gross income in relation to federal poverty levels.
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