Tag Archive for: divorce

Post-Divorce Issues

Finally receiving the divorce decree is an accomplishment for divorcing parties, however, it does not always mean the end of the matter. If custody and support were issues were raised as part of the divorce, even though an initial resolution may have been met, both are issues which can be revisited based on change of circumstances. Additionally, in either a court order on equitable distribution or a settlement agreement reached between the parties, there may be provisions which carry additional obligations to be fulfilled even after the divorce has concluded. Support and custody issues always carry a continuing obligation to either pay a certain amount per month or follow a certain custody schedule. There are also several scenarios when dealing with marital property that can create a continuing obligation.

For example, when a marital residence is being kept by one party, there will likely be a provision granting the party a certain number of days to refinance the property and buy the other party out for their share of the equity. If the refinance does occur, a deed will probably be needed to place the title into only one party’s name if not already done. If the refinance does not occur in that time frame, the alternative is usually to put the house up for sale and split the proceeds. If the parties cannot agree about selling the house, selecting a realtor, setting a price, etc., either party may seek assistance from the court. This would involve a Petition for Contempt and Enforcement of the court order or agreement. Most well-drafted agreements will include a provision that the party defaulting on their obligations will be the party responsible for any additional legal costs incurred to enforce the agreement.

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Disability Pension

Pensions are generally considered marital property and subject to distribution at the time of divorce. The pension may need to be appraised to determine the marital value of the pension, specifically in an instance where the party began accruing the benefits prior to the marriage or the parties were separated for numerous years before a divorce action was commenced. There are also retirement benefits that are excluded from equitable distribution. For example, under 23 Pa. C.S. 3501(a)(6), veterans’ benefits are excluded from equitable distribution.

Other disability benefits besides veterans’ benefits may also be excluded from equitable distribution. The key is to consider the purpose of the benefit and whether it is being used to compensate for lost income. In other words, if the purpose of the benefits is to provide earnings in lieu of what the recipient would’ve made were they still able to work, those benefits will not be subject to distribution. If, however, a portion of the benefit also includes standard retirement benefits, the portion representing retirement benefits will still be subject to distribution.

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Practical Steps in Preparing for Divorce

Many clients contemplating divorce have questions about what they should do even prior to filing for divorce to protect themselves. Below is a list of some proposed actions from personal finance company, Kiplinger’s.

Obtain a credit card in your own name if you don’t already have one.

Obtain a checking and savings account in your own name.

Withdraw half the money in joint accounts or change the signature authority so that both parties must sign to complete any transaction. (Beware that if you withdraw all the money in a joint account you may be ordered to give back a portion by the court down the road and accordingly, it is not wise to spend it.)

Collect all information accessible to you regarding your spouse’s bank accounts, retirement/pension plans, insurance policies, real estate interests, and any other financial assets.

Get copies of state and federal income tax returns for the past few years.

The purpose of these actions is to preserve your financial stability going forward by putting things into your own name. You are also ensuring that joint accounts will not be used or closed out by the other party without receiving your fair share. Ultimately, the court will determine what that fair share is at the time the divorce is finalized and that is why the money should not be spent pending the finalization of the divorce. Another tip for parties who are selling a marital home either prior to filing divorce or while the divorce is pending, is to hold the proceeds of the sale of the home in escrow. The share of the proceeds payable to each party would then be determined at the time of equitable distribution.

Click here to view the Kiplinger’s Article: Divorce and Your Money

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Fault Grounds for Divorce

Most divorces proceed on the basis of no-fault or irretrievable breakdown of the marriage based on mutual consent after ninety days or two year separation, however, fault grounds for divorce can still be utilized. Under 23 Pa CS 3301(a), the fault grounds for divorce are listed and include(1) desertion for the period of one or more years; (2) adultery; (3) cruel and barbarous treatment; (4) bigamy; (5) imprisonment for a term of two or more years; and (6) indignities to the point of life being intolerable and burdensome. The party alleging fault must prove its existence and must also establish they are the “innocent and injured spouse.” 

23 Pa CS 3301(b) discussing another ground for divorce infrequently used: institutionalization. This provision allows a divorce on the ground that insanity or serious mental disorder has resulted in the other spouse’s confinement in a mental institution for at least 18 months without reasonable prospect the spouse will be discharged. “A presumption that no prospect of discharge exists shall be established by a certificate of the superintendent of the institution to that effect and which includes a supporting statement of a treating physician.” There is often no benefit to pursuing fault grounds for divorce over no-fault grounds as fault is not a factor to be considered in equitable distribution (division of property). However, the laws of support do address fault grounds in two instances: as a defense to paying spousal support and as a bar to receiving alimony.

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Division of Military Benefits

A 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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Exclusive Possession of Marital Residence

Pursuant 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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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.

Click here to read more about divorce in Bucks County.

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