Abby has a point…

October 23, 2015 Leave a comment

In a recent “Dear Abby” post, the inquirer noted that her former son-in-law thinks it is “offensive” that the maternal grandmother charges $10 per day plus $10 per week for gas to babysit her grandchildren. As Abby points out, if the grandmother did not provide the low cost child care ($60 per week), the child care costs would likely be higher.

Under Pennsylvania law, in a child support order, the Court has the discretion to order that each party contribute to the reasonable child care costs incurred by one of the parties to that the party can go to school or work.  That expense is allocated in proportion to the parties’ incomes. If both parties incur child care expenses, the expenses of each of the parties are considered. The rule also provides that the Federal child care credit can be taken into account when allocating the child care expense, but only if the tax credit is available to one of the parties without regard to whether or not the person actually takes the credit.

In some instances, a party works only part-time so that he or she does not have to incur a child care expense. In those instances, if the court were to attribute to the party an earning capacity for a full time salary, the Court may have to consider what a reasonable child care expense would be if that person worked full time. Using a full time salary with a child care expense can result in a higher child support obligation that one where the person is only working part-time without a child care expense.

My advice to the offended father in this situation would be that he should price out child care costs for his children and see if he is not getting a better deal with his former mother-in-law providing the day care.

Wait! What do you mean they are still married?

October 16, 2015 Leave a comment

It was recently reported on the website that Khloe Kardashian and Lamar Odom are still married despite having signed “divorce papers” in July 2015 and having filed for divorce in 2013. What may be crossing your mind is “What is taking it so long?” or “Aren’t they divorced once they signed the papers?”. Hopefully, I can clarify things a bit and explain how divorces proceed in Pennsylvania, which some specificity regarding how cases proceed in Philadelphia.

Many people (lawyers and non-lawyers alike) think that once someone signs the “divorce papers”, they are divorced.  I blame part of this misconception on the media.  Many TV shows and movies show the estranged husband and wife meeting in a parking lot or on a quiet road. One implores to the other to just sign the divorce papers. Someone pulls out a stack of documents from the car or from their person and leans on the car to sign the papers.  Despite what is depicted in the media, there is only one “magic” document that is signed that immediately results in the the parties being divorced – the divorce decree signed by a Judge.

There are many factors that impact how long it will take the parties to get a divorce. The grounds for divorce are a factor; the level of cooperation by the parties is also a factor; the procedure for that particular state and county also factor in how long it can take for a divorce decree to be entered.

Here is the typical timeline for a divorce action filed in Philadelphia, Pennsylvania:

  1. A divorce complaint is filed with the Court
  2. The complaint must be served on the other side within 30 days of its filing (90 days if the other party does not live in PA)
  3. If the complaint is not served within that time frame, it can be reinstated and the time period starts again.
  4. 90 days after the complaint has been served, each party can sign and file an Affidavit of Consent.
  5. If there are economic issues to resolve, after both affidavits of consent are filed, one party can prepare a stack of documents are sent to the other side to let that party know that the paperwork is going to be sent to the court asking that the grounds for divorce be approved 20 days later.
  6. 20 days after the documents from item 5 are sent to the other side, the paperwork is sent to the Court where the paperwork is held for another 10 days.
  7. After that 10 day period has elapsed, the file is sent to the appropriate judge for review and signature by the judge. How long it takes for the file to be reviewed and the order signed by the judge is out of everyone’s hands other than the judge.  Remember, this is the timeline where there are economic issues that still need to be resolved – so the Court is entering an Order approving the grounds for divorce – IT IS NOT A DIVORCE DECREE.
  8. In Philadelphia, once the Order approving the grounds for divorce is signed, it is up to either of the parties to prepare and file the paperwork asking the court to schedule a hearing before the Equitable Distribution Master.  In Philadelphia, if no one files that paperwork, the case will just sit. In some other counties in PA, once the grounds ordered is entered, the Court automatically schedules the hearing.
  9. When that hearing is scheduled depends upon the Court docket.
  10. At the initial listing before the Equitable Distribution Master, the Master will usually hold a settlement conference.
  11. If the parties are able to work things out at the settlement conference (and they do more than 90% of the time), the agreement is prepared and signed that day; a divorce decree is usually entered 2 weeks later.
  12. If there is no agreement, the Equitable Distribution Master may schedule another court appearance and/or may issue a written recommendation.
  13. Once a written recommendation is issued, each side has a period of time to object to the recommendation. If either side files an objection, the case is scheduled for a new trial before a judge.
  14. If there are no objections OR if there is a new trial before a judge who makes a determination regarding the economic issues, THEN a divorce decree is entered.

Although the timetable set forth above assumed there were economic issues that need to be resolved, please note that the last piece of paper that required the defendant’s signature was back in step 4 – there was no other document that the defendant had to sign before the divorce decree could be entered (there are numerous documents that the defendant receives, but not many that require the defendant’s signature).

If there are no economic issues to be resolved by the Court, the first 4 steps of the timeline set forth above still apply; the rest of the timeline is as follows:

5. If there are NO economic issues to resolve, after both affidavits of consent are filed, one party can prepare a stack of documents are sent to the other side to let that party know that the paperwork is going to be sent to the court 20 days later asking for the entry of the divorce decree.

6. 20 days after the documents from item 5 are sent to the other side, the paperwork is sent to the Court where the paperwork is held for another 10 days.

7.  After that 10 day period has elapsed, the file is sent to the appropriate judge for review and signature by the judge. How long it takes for the file to be reviewed and the order signed by the judge is out of everyone’s hands other than the judge.

The time between steps 4 and 5, regardless of which timetable applies, is dependent upon one of the parties preparing and serving certain  paperwork on the other party. While I am not versed in California law, where I presume Khloe filed for divorce, and while I am not aware of the specifics of her case, if the “divorce papers” that each party signed in July were similar to Affidavits to Consent under PA law, perhaps the Court is waiting for either attorney to move the divorce action forward.

Only time will tell how long it will be if the divorce between Khloe and Lamar is concluded.

Legally Separate, Get Divorced, or Annul a Marriage

With the clarification that LGBT couples have the legal right to marry in many states and to have the marriages entered into in other states legally recognized, same sex couples have been marrying. For some couples, the legal recognition of their marriage means they have the legal right to get divorced.  One such couple, WNBA stars Brittney Griner and Glory Johnson apparently have gotten married and, according to this article, less than 1 month later may have decided to legally end their relationship.

What interests me about this announcement is not that they may be seeking to legally terminate their relationship after only 29 days – their celebrity marriage would not even be the shortest. I was struck by the comment from Brittney Griner who allegedly stated, “”Last Wednesday, Glory and I agreed to either legally separate, get divorced, or annul our marriage,”  There is a difference between each of these.

First off, as I stated in a prior post, legal separation exists in some jurisdictions. It is a requirement for a party to obtain some relief from the court, spousal support for example. It is not a requirement in Pennsylvania.

With an annulment, the Court is making a determination that the marriage never occurred for legal reasons. When one is seeking  an annulment under Pennsylvania law, the first issue is whether the marriage is void or voidable.

A void marriage is one that cannot be recognized by the law for public policy reasons.  Under Pennsylvania law, a marriage is void under any of the following circumstances:

  • Either person was still married to someone else at the time of this marriage, i.e. bigamy.
  • The parties are related within certain “degrees of consanguinity” meaning their are close blood relatives. The law specifies which relations are too close (like aunt/nephew) and which are not (second cousin twice removed), for example.
  • Either party was incapable of consenting by reason of insanity or serious mental disorder, lacked legal capacity to consent, or did not intend to consent to the marriage.
  • Where either party to a purported common-law marriage was under 18 years of age.

For some of these situations, it is possible for the impediment to the marriage to disappear. In such case, if the parties continue to live together after the impediment is gone, then the parties are considered married, For example, Mary married Peter many years ago; however, they have been separated for the last several years. Peter filed for divorce and Mary thought that the divorce decree had been entered when she married John.  It turns out that the divorce between Mary and Peter was not signed by the Judge until 6 months after Mary married John. On the day after that divorce decree was entered, if Mary and John were still living together, they are considered legally married.

A voidable marriage is one which can be declared invalid by the Court, but only if one of the parties challenges the validity of the marriage. By statute, the grounds for annulment of a voidable marriages under Pennsylvania law are as follows:

  • Where either party was under the age of 16 years at the time of marriage (unless the marriage was expressly authorized by the court)
  • Where either party was 16 or 17 years of age but lacked the consent of parent or guardian or express authorization of the court; this basis for an annulment has two additional requirements: the marriage has to be ratified by the parties upon reaching age 18 and the action for annulment has to be commenced within 60 days of the marriage ceremony.
  • Where either party was under the influence of alcohol or drugs and an action for annulment is commenced within 60 days after the marriage ceremony.
  • Where either party was at the time of the marriage and still is naturally and incurably impotent unless the condition was known to the other party prior to the marriage.
  • Where one party was induced to enter into the marriage due to fraud, duress, coercion or force attributable to the other party and there has been no subsequent voluntary cohabitation after knowledge of the fraud or release from the effects of fraud, duress, coercion or force.

Notice there is nothing in the Pennsylvania statute that talks about a failure to consummate a marriage.

No facts were mentioned in the article which would give rise to any of the grounds for annulment on the basis of the marriage between Brittney and Glory being void.  As far as the “voidable” grounds are concerned, there are no facts that would be applicable to Pennsylvania law either.  Maybe one of the parties are going to allege some type of fraud, but once the fraud was disclosed, cohabitation had to stop.  Just not wanting to be married to someone is not a valid basis for a legal annulment under Pennsylvania law.

It looks like, under Pennsylvania law, Brittney and Glory would have to get a divorce and not an annulment.

Why Wait So Long?

It was reported on that actor Ed Asner has filed for divorce from his wife Cindy although they have been separated for 8 years. The media, presumably People’s readership, and anyone else who is curious, was wondering why he would file for divorce after they have been separated for so long and, conversely, why didn’t one of them file when they first separated?  Without getting into any psychological reasons why people don’t file for divorce, despite being separated, let me share some thoughts from my 25 years experience as a family law attorney.

So, if husband and wife have been separated for 8 years, why would one of the parties decide, after all that time, to finally file for divorce? The simple answer is that, in this case, maybe Asner wants to get divorced.  People tend to forget that, for parties to get a divorce, someone has to start a divorce action. There is no magic period of separation after which the parties are suddenly divorced.  The civil dissolution of a marriage requires the filing of paperwork with court. Under Pennsylvania law, it does not matter how long the parties have been separated, they are still considered legally married until either a divorce decree is entered by a judge or until one of the parties dies.  If the parties married on January 1, 2001, and separated on January 2, 2001, it does not matter they they have been separated for more than 14 years. They are still married under Pennsylvania law.  They cannot marry any other people. Maybe Asner wants to get married for the third time.

When parties who are married, but living separately file their federal tax returns, assuming they do not file a joint return, they can only file with the filing status of “Married Filing Separate” or “Head of Household”, if that would apply to them. They cannot files as “Single” because they are not. Maybe Asner was tired of paying taxes at the higher “Married Filing Separate” tax rate?

What about “legal separation”? Some jurisdictions require a party to file for “legal separation” in order to assert economic claims  incident to the dissolution of their marriage, like spousal support. Pennsylvania does not recognize “legal separation”.  This also means that, assuming Pennsylvania law would apply to his situation, Asner would have to maintain health insurance coverage for his wife Cindy because they are still married, i.e. not divorced. Sometimes, a party would want to make sure that the other side has health insurance coverage to ensure ongoing medical treatment so the parties put off the filing and finalizing of the divorce. N.B. This may be less of an issue now that health care is available to more Americans under the Affordable Care Act, aka Obamacare. Maybe Asner wanted to keep his wife on his health insurance coverage?

Under Pennsylvania law, an income superior spouse could have an obligation to pay spousal support to the other party until a divorce decree is entered. The filing of a complaint for spousal support does not require the filing of a divorce complaint. A person, like Asner, could pay spousal support for years with no end in sight if no divorce action was ever started.  So, perhaps Asner filed for divorce because he was finally tired of paying spousal support.

Under Pennsylvania law, the marital estate, which would be subject to equitable distribution, would consist of the assets and debts acquired by either party from their date of marriage to their date of separation, regardless of title. So, applying Pennsylvania law to the Asner’s case, any assets that either acquired during their 8 year separation would not be subject to equitable distribution. The Court can consider, however, they extent and value of each parties’ non-marital assets and debts when determining how the marital estate is to be divided.

Only Asner and possibly his attorney know the reason why he waited to file for divorce.  Maybe Cindy started to show spunk and we all know Lou Grant hates spunk.

Flipping a Chef’s Prenup

According to this article, as part of her pending divorce action with chef Bobby Flay, actress Jennifer March, intends to challenge the prenuptial agreement which could otherwise limit what either March or Flay would be entitled to receive incident to a divorce or the death of a party.  Through a prenuptial agreement, parties decide what will happen in the event of the death of one of the parties or in the event of their separation or divorce.  The purpose of a prenuptial agreement is to address these issues in a way that differs from what the law would otherwise provide.  In a divorce context, the parties can decide to include or exclude certain assets from division; they can also decide who gets what either by asset or by percentages; they can decide whether or not someone is going to receive alimony or other financial support.  Basically, as long as the terms of the agreement are not contrary to public policy, the parties can agree to anything that they want.  For example, as reported in that article, it appears that Flay and March agreed in their prenup that he would be obligated to pay her $5,000 per month. It is also possible that they could have agreed that there would be no payment of alimony or support in the event of their separation or divorce.

The aspect of this article which I wanted to home in on was the statement, “March is challenging the prenup on the grounds that Flay allegedly cheated on her with three women, including actress January Jones.” This, of course, raises the question, in what situations can a prenuptial agreement be challenged or set aside. If March’s challenge is successful, then the entirety of the agreement is thrown out and the law where this divorce action is taking place controls. Obviously, March believes that she would receive more from Flay as part of the divorce if the prenuptial agreement were set aside. Otherwise, she would not bother.

Under Pennsylvania law, a prenuptial agreement can only be set aside in very limited circumstances – only in two situations, actually.  If someone wants to challenge a prenuptial agreement in Pennsylvania, that person must convince a court by clear and convincing evidence that

  1. the person challenging the agreement did not execute it voluntarily  OR
  2. before the agreement was signed,
    1. the person challenging the agreement was not provided with “a fair and reasonable disclosure of the property or financial obligations of the other party”;
    2. the person challenging the agreement did not voluntarily and expressly waive, in writing, the right to such financial disclosure; and
    3. the person challenging the agreement did not have adequate knowledge of the property or financial obligations of the other party.

In other words. under PA law, If March was not able to show that she did not sign the prenuptial agreement voluntarily, she would need to prove that she did not know the extent of Flay’s assets, she was never provide the information about his assets, and she did not, in writing, give up the right to know about his assets. If she were to only say, as her pen glided across the signature line of the agreement, “I am so in love, I trust him and I don’t need to know about his assets.”, that would not be enough under PA law. Such a waiver was not in writing.

Note that there is nothing in the law in PA which allows for a prenuptial agreement to be set aside because it is a bad deal.  A party can agree to give up all rights that would arise as part of a divorce, primarily the division of assets and alimony, if that party so chooses.  There is also no requirement that both parties have attorneys.

Based on the quote above, it appears that March is conditioning her challenge of the prenuptial agreement on alleged adultery. However, as the article mentions, there is no known “infidelity clause” in the March-Flay prenuptial agreement. When such a lifestyle clause is in an agreement, it becomes a required condition for some other aspect of the agreement. For example, “If Flay commits adultery, March will receive $10,000 per month in alimony; if March commits adultery, Flay will have no obligation to pay alimony.”  This language actually sets forth 2 lifestyle clauses – each taking into consideration what happens if either party commits adultery.  States may vary as to whether such provisions would be enforceable.

Based on the limited information presented in this article, it does not seem likely that, if this were a Pennsylvania case, March would be able to set aside the prenuptial agreement. There is no indication in the article regarding the failure to provide financial disclosure. Without that failure, this prenuptial would be as solid as one of Flay’s cast iron skillets.

Khloe’s Divorce to be Dismissed?

April 17, 2015 1 comment

It is old news that Khloe Kardashian filed for divorce from her husband Lamar Odom back in 2013. According to this article, however, there is a possibility that her divorce action could be dismissed by the Court in Los Angeles. It would appear from this article, that under California law, a party has an affirmative duty to keep a divorce action moving; otherwise, the case could be dismissed. It would appear that she started her action in December 2013 and, if nothing else is filed by the end of April, her case will be dismissed. It is not clear from the article what either Khloe or Lamar will have to file to preclude the dismissal of her divorce action.

So, what would have happened if Khloe had filed her divorce action in Pennsylvania.  In many counties in Pennsylvania, the divorce action is driven by the parties, not by the court system. If either party files the appropriate document, the case moves through the system. If neither party files anything to move a case forward, the case sits dormant if not for months, then for years.   In 2003, a Rule of Civil Procedure was implemented by the Supreme Court of Pennsylvania authorized a trial court to terminate any case “in which there has been no activity of record for two years or more by serving a notice of proposed dismissal of court case.” Pa.R.C.P. 230.2.  Not long after this rule was implemented, county courts were sending our many notices and/or publishing notices regarding which cases would be terminated if there was no activity.  To avoid having one’s case dismissed, a simple “Statement of Intent to Proceed” would be filed with the Court within 30 days of the Notice being sent. If the Statement were filed, the case could sit inactive for another two years before another notice could be sent.  The filing of the Statement of Intent to Proceed was like re-setting the shot clock.

On April 23, 2014, however, the PA Supreme Court issued an order suspending this rule. According to the text of the order that was issued, Rule 230.2 was going to be under “review and revision.” Almost 1 year later, this rule is still suspended.   However, this did not preclude the courts from dismissing inactive cases.  The April 2014 Order from the PA Supreme Court specifically provided that the Court could still proceed under Rule of Judicial Administration (Pa.R.J.A.) 1901.

This administrative rule provides that the county trial courts have the discretion to develop a local rule which provides for the termination to inactive cases.  At least 30 days notice still has to be given before the termination. Instead of their being a universal procedure throughout PA, it was left up to the county.

So where would this leave Khloe if she filed in PA? It would depend upon the county where she filed. If she wants to get a divorce, she or Lamar should move the case forward to its conclusion.

Truly Special Service

In most divorce cases, a party is served with the divorce complaint by mail or through personal service.  As reported in this article, a NY judge allowed a person to be served with notice of a divorce action via Facebook.  Anyone having difficulty serving a divorce complaint on the other side should not start posting things on Facebook and assuming they have good service.

Service is the way in which a person is given notice that a law suit has been initiated.  Some form of notice is required in every type of law suit. This makes sense because a person should know if someone is suing him or her, why the suit is being brought, and what the remedy is that the person is seeking.  Usually, delivering to the defendant a copy of the complaint or other paperwork which initiates the lawsuit provides all of this information.

Under Pennsylvania law, a party starting a divorce action (the plaintiff) can serve the other party (the defendant) by mail. However there are some strict requirements.  Original service, which would include service of an initial divorce complaint, can be completed by mail if it sent by certified mail, for the recipient’s signature only.  If the certified mail is accepted, i.e. signed for by the defendant, there is good service.  The Plaintiff has to sign an Affidavit affirming that the signature on the green card is that of the defendant. If the green card is signed by any other person even if that person lives with the defendant, it is not good service and other means have to be taken to properly serve the defendant.

If the certified mail is unclaimed, which happens in many situations, it is also not good service.  If the certified mail is refused, if the same documents were sent to that same address by regular mail, and if the regular mail does not get sent back because there is no one living at that address with name of the defendant, then there is good service. The presumption is that the intended recipient of the mail is the person who refused to sign for the certified mail. It is important to keep in mind that refused certified mail, which means the intended recipient affirmatively refused to accept the mail., i.e. told the mail carrier that he or she is not going to sign for the certified mail, is only good service if regular mail sent to that same address does not get returned. In more than 25 years of practice, I think I have had certified mail refused twice. Someone simply not being home to sign for the certified mail or not going to the post office to sign for the certified mail does not make it “refused”; rather it is just “unclaimed.”

So what is the average person in Pennsylvania to do if the certified mail is unclaimed. The person has to look into having the documents personally served by any adult who is not the Plaintiff. A process server or private investigator can be hired to do this. Actually, under the Pennsylvania Rules of Civil Procedure, any adult who is not the Plaintiff can do this.

If personal service is not successful, as in the article referenced above, the Plaintiff has to file a Petition for Special Service. That special service can be to have a notice published in the local newspaper of general circulation, i.e the major newspapers in that area, or service at the address of a relative who is likely to have contact with the defendant, or service at the defendant’s place of employment.  The person asking for permission to specially serve the defendant can be creative in offering suggestions to the Court. Those suggestions need to be likely to get the defendant’s attention; there needs to be some likelihood that the defendant will see the paperwork or receive notice that the divorce action has started.

In Philadelphia, before one files a petition for special service, there are numerous steps that must be taken. The person seeking special service needs to have confirmed the defendant’s address with the US Post Office, which is a simple form. The plaintiff needs to check with local Board of Elections to see where the Defendant is registered to vote. The Plaintiff has to check with the Pa Department of Transportation to find out the address associated with the Defendant’s driver’s license.  There is a list of steps that the Plaintiff must take before filing the Petition for Special Relief.  It would appear from the facts set forth in that article that NY has similar requirements.

When all the required steps have been exhausted and the defendant still can not be served, then a person can file for special service.  In this particular case, the plaintiff was fortunate to know that the defendant has a Facebook account which he checks on some regular basis. Otherwise, the plaintiff may have had to resort to other, more expensive options.

The novel solution in this New York case is not going to apply to every other divorce case. However, it does provide an additional option where all other options have been exhausted.


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