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Paternity in Pennsylvania

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If you hold yourself out to be the father without objection or demand of proof, then you are the father Even if DNA later proves otherwise, the state holds you to your directly expressed, or implied expressed, intent If a mother allows a man to act as the father, she can not later deny his paternity (even with conclusive DNA evidence)

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The Right to Marriage

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Supreme Court has held that marriage is a fundamental right However, in certain circumstances, the state has a right to step in and tell you what you can or cannot do in a marriage

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Marriage (Pennsylvania)

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\"One man and one woman\" Whereas alimony terminates on death, REMARRIAGE, or COHABITATION in an intimate relationship; in PA, cohabitation in an intimate relationship with a member of the same sex will NOT terminate alimony (but in other states, remarriage or cohabitation with same sex can terminate alimony)

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Common Law Marriage (Pennsylvania)

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Ended in 2005; however, there are rights for cohabitators that can be established and litigated in civil court (but not in family court)

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Same-Sex Parents (Pennsylvania)

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PA does not recognize two same-sex parents in that specific context However, PA will recognize one biological parent plus the \"partner\" as \"in loco parentis\" (based NOT on the fact that the couple are same sex partners, but on the PA principle that \"holding yourself out to be a parent basically makes you the child's parent in the eyes of the state\")

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Maximum \"parents\" of a child

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Maximum number of people that can be involved in parenting of a child (as \"parents\") is FIVE: sperm donor, egg donor, birth mother, and social father and mother (who raise the child)

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Constitutional Protection of \"Family\" (Moore v. City of East Cleveland)

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Supreme Court finds strong constitutional protection of \"the sanctity of family\" established in numerous U.S. Supreme Court decisions, which extends beyond an arbitrary limit drawn at just the nuculear family Rational Basis Review

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Right to Privacy

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Griswold v. Connecticut (1965) - the constitution protects a right to privacy

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Annulment (generally)

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An annulled marriage never happened in the eyes of the law No one pays, owes, etc.

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Contraception and Equal Protection

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Eisenstadt v. Barid (1972) Unmarried people have the right to possess contraception on the same basis as married people By implication, unmarried couples have a right to engage in potentially nonprocreative intercourse (but the case did not go so far as to protect a right of unmarried people to engage in ANY type of sexual intercourse)

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Sodomy Laws

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Lawrence v. Texas (2003) Supreme Court struck doen sodomy law in Texas By extension, the Supreme Court invalidated sodomy laws in 13 other states, makign same-sex sexual activity legal in every US state and territory This case overturned Bowers v. Hardwick (1986) which upheld a Georgia statute and did not find a constitutional protection of sexual privacy

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Legal Advice (Barrett v. Virginia State Bar)

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Emails between huisband (lawyer) and wiffe regarding divorce and legal matters were not the husband giving the wife inappropriate legal advice, the emails were just marital communication and husband's opinions

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Void Marriage (not the same as voidABLE)

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A marriage is void because of an impediment that can not be removed because the impediment violates a core marriage prohibitions such as bigamy, incest, or same sex)

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Voidable Marriage (not the same as void)

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A party to the marriage may void the marriage because of an impediment that may be removed or may, although not consistent with the original intent of the marriage, be determined not important These impediments offend less stringent public policies like persons who marry too young, without proper mental or phsyical capacity, or under inducement of fraud

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SSR

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Self Sufficiency Range If the Defendant is not at or above SSR, the court will not take support obligations Around $800 per month in PA, based on pverty level figures, and adjusted every 3 years

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Historical Requirements to Marriage

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Mutual consent Minimum age Not already married No close familial relationship with intended spouse Procedurally, formal marriage required a licese and a relgious or civil cermeony; and an informal marriage (common law) was widely accepted and required only a mutual expression of intent along with entering a community reoputation as a married couple

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Marriage and Race

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Loving v. Virginia (1967) Supreme Court ends all race-based restrictions on marriage in the United States

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Zablocki v. Redhail

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US Supreme Court in 1978 Recaps that, under numerous Supreme Court decisions, marriage has been held to be a fundamental right Accordingly, any restrictions on marriage must be analyzed under strict scrutiny to determine if the restriction can survive constitutional review In this case, the Wisconsin law failed strict scrutiny and was declared unconstitional

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Same Sex Marriage (PA)

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Currently, PA does not recognize same sex marriage, nor civil unions, nor domestic partnerships - though attempts have been made in recent years to both allow for suh unions, as well as to block such legislation with a constitutional amendment banning same sex marriage. Current PA statute defines marriage \"between a man and a woman\" PA is one of the minority of states not to have a constituional amendment banning same sex marriage

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Same Sex Marriage (Mass.)

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November 18, 2003 - Goodridge v. Department of Public Health Mass. highest court is the first of any state hiughest courts to say that same sex couples have a right to marry Mass. Supreme Judicial Court found that the state may not \"deny the protections, benefits, and obligations conferred by Civil Marriage to two individuals of the same sex who wish to marry. The state does not have a rational basis for denying same sex couples marriage on the grounds of due process and equal protection.\"

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Same Sex Marriage (internationally)

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By court decision or legislative action, same sex marriage is now legal in Canada, Belgium, Netherlands, Spain, and some US States

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Polygamy

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Reynolds v. US (1878) Supreme Court hupheld criminalization of polygamy and said it does not punish religious conduct in violation of the first amendment

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State v. Green (2004)

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Utah state supreme court upheld the trial court's conviction of Thomas Arthur Green (a mormon fundamentalist) of 4 counts of bigamy and one count of failure to pay child support

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Incestuous Marriage

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The right to participate in adult, consensual incest is NOT a protected fundamental liberty interest States, in the excercise of their legislative function, may legitimately proscribe against acts which threaten public order and decncy, including prohibitions against interfamilial sexual relations

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Void Marriage and Death

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A void marriage can be annuled after the death of one of the parties (prevailing rule - In Re: Estate of Santolino)

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Requirement of a Marriage License

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Parties' failure to obtain a marriage license does not render the marriage void (Persad v. Balram) There is a strong presumtion favoring the validity of marriages

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Common Law Marriage: historical requirments

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Parties are competent Parties assumed a marital relationship by mutual consent Parties confirmed marriage through cohabitation and public reputation (In re: Estate of Hunsaker)

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Fault Grounds for Divorce (PA)

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1. Willfull and malicious deseration and absence for one year or more without reasonable cause 2. Adultery with the opposite sex 3. Cruel and barbarious treatment; encompasses physical cruelty 4. Bigamy 5. Conviction, sentencing and imprisonment for 2 years or more 6. Indignities resulting in intolerable conditions and burdensome life; encompasses mental cruelty

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Fault-Based Divorce in PA: innocent and injured

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Does not mean completely without your own fault; just means without as much fault as your spouse

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Strict Fault Based System

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Divorce is available onlt to an innocent party victimized by the other spouse's serious misconduict Burden of proof is on the innocent party

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Fault's Impact on Property Distribution

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Fault is not a factor the court will consider in PA, when distributing property But in some states, fault is a factor for determining the property settlement agreement Note: Covered later - PA does consider fault when awarding alimony

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Cruelty

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The cruelty which entitles the injured party to a divorce consists of that sort of conduct which endangers the life or health of the compaintant and renders cohabitation unsafe Cruelty as cause for divorce includes any conduct on the part of the spouse which is calculated to seriously impair the health or permenantly destroy the happiness of the other

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Mental Cruelty

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Requires a showing of \"habitual, continuious, permenant and plain manifestation of settled hate, alienation, and estrangement on the aprt of one spouse, sufficient to render the condition of the other intolerable\"

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Adultery

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All forms of sexual contact (not limited to intercourse) between persons of any gender (must be opposite sex in PA) generally qualifies as adultery justifying a claim for fault-based divorce

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Adulter (Spence v. Spence)

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Assuming you can not prove actual adultery through direct evidence, in order to obtain a divorce based on adultery, one must prove by clear and convincing circumstantial evidence that there was both an adulterous inclination AND a reasonable opportunity to fulfill that inclination because such circumstantial evidence mais enough if it leads the trier of fact to a guilty conclusion Burden of proof is on the accuser

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Habitual, Cruel, and Inhumane Treatment

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Course of conduct on the part of the offending spouse which was so unkind, unfeeling, or brutal as to endanger or put one in reasonable apprehension of danger to life, limb, or health; and further that such course of conduct must be habitual (done so often or continued so long that it may be reasonably said a permenant condition)

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Habitual Cruel and Inhumane Treatment: below the threshold

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Denial of divorce based upon these grounds may result \"in rendering the wife unhappy and her marital bond irksome, but for that alone the law does not sanction divorce.\" (Spence Case)

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Fault Based Divorce: Bars and Defenses (generally)

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Recrimination (of setting faults by both) Provocation (reasonably provoked by actions of the other spouse) Connivance (one party lures the other into creating fault grounds) Condonation (you already forgave) Collusion (fabricated evidence together to create fault) Consent

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Fault Based Divorce: Defenses (PA)

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General rule: Common law defenses apply; except no defense if consent is mutual for divorce or if the court is pursuaded of an \"irretrivabke breakdown\" (no fault)

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Fault Based Divorce: Adultery (PA)

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Defense and perpetual bar against action if: a. Plaintiff is also guilty of adultery (like conduct) b. Plaintiff had sex with Defendant after obtaining knowledge of adultery c. Plaintiff permitted Defendant to prostitute self and/or took money for it (pimp) d. Plaintiff exposed Defendant to lewd company that led to adultery

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No-Fault Divorce: generally

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No victimization of one spouse by the other Look only at marital breakdown No need to prove fault

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No-Fault Divorce: requirements

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Most jurisdictions require: (1) a finding that the marriage is \"irretrevably broken;\" and (2) a waiting period of \"living seperate and apart\" for a specific statuatory length of time (2 years in PA) before divorce can be granted (therefore divorce may be faster under the fault-system)

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\"Irretrievably Broken\"

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Either spouse, or both, are unable or unwilling to cohabitate, and there are no prospects for reconcilliation

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Fault v. No-Fault: Pennsylvania

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Parties seeking a divorce in PA may elect to proceed on fault or no-fault grounds

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Dissolution of Marriage in Pennsylvania

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Three ways to dissolve a marriage in PA are anullment, fault divorce, or no fault divorce

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\"Living Separate and Apart\"

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Most states, including PA, have a statuatory waiting period in no-fault divorce PA mandates 2 years, except where both parties consent Does not require living in seperate houses; only seperate lives \"Physical seperation coupled with at least one party's intention to live apart permenantly, with such intention shown to have been present at the beginning of the seperation period\"

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Living Seperate and Apart: Reconcilliation

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Reconcilliation and resumption of cohabitation can result in the clock on the seperation priod being reset for purposes of a later divorce

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Annulment

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Declaration recognizing that the marriage attempted by the parties never came into existence at all because of a fatal impediment at the time of formation Marriage was void or voidable from the start due to a fatal defect dating back to the marriage's inception

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Annulment: potential consequences

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Since a legal impediment rendered the marriage defective from the very beginning, it clears the way for marriage to another; however, it could also result in harsh consequences - specifically, there is no basis to afford either party economic or social protections the come with legal marriage

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Putative Spouse Doctrine

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Theory which provides a party who mistakenly, although reasonably, believes they are married, with the legal benefits of marriage

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Void Marriage: grounds in PA

answer

Bigamy (already married) Close relatives Mental incapacity Both parties below age of 18

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Voidable Marriage: grounds in PA

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Either party was under 16 Either party was intoxicated + annulment petition is filed within 60 days Impotency Fraud, duress, coercion, or force were used to secure the marriage

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Legal Seperation

answer

Limited divorce, as an alternative to divorce Parties formalize marital property and support rights where a married couple intends to remain married wile living seperate and apart Decree of legal seperation does not - and in most states cannot divide legal ownership of marital property

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Property Regimes (during marriage)

answer

Two Property Regimes during marriage: 1. Title Theory - Pennsylvania - the spouse with title has ownership - in all states that apply title theory, it is limited in application to the life of the marriage and equitable distribution is applied at divorce 2. Community Property - minority, only 9 states - everything acquired during the marriage is owned 50/50 during the marriage- must consult spouse on property decisions during the marriage - some community property application at divorce with some states requiring automatic 50/50

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Community Property: Exceptions

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1. Property acquired by one party before the mariage 2. Property acquired during the marriage by one party through gift, bequest, or devise

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Property Regimes (at dissolution)

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1. Equitable Distribution - Pennsylvania 2. Community Property Both lead to virtually indistinguishable results Requires the court determine \"fair, just, and equitable\" distrbution of martiale property, but not seperate property Thus, the first steo for the Court is determining what is marital and what is seperate

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Division of Marital Property: Steps

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1. Identify and characterize each asset as marital or seperate 2. Value all marital assets 3. Distribute all divisible assets equitably or equally or, in the alternative, order monetary award as an adjustment to the parties' equities

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Transmutation

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By their actions, parties modify the status of the property they own from seperate to marital

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Comingled Funds

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When a spouse's seperate property is mixed with either the other's seperate property or mixed with marital property then, at dissolution: (a) when applying equitable property, the comingled funds are marital property (b) when applying Community Property, the rebuttable presumption is that the comingled funds are mrital property, but a proper paper trail can rebut the presumption

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Equitable Distribution: In Pennsylvania

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Equitable, fair, and just is at the sole discretion of te judge Seperate property typically avoids equitable distribution; however, an increase in value is marital property Will also include equitable distribution of \"marital debts\" that were necessities of the family

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Equitable Distribution in PA: Factors

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Length of marriage Prior marriages Age, health, station, income, skills, employability, estate, liabilities, and needs Contributions to education, training, and increased earnings power Opportunities for future acquisition of assets and income Medical, retirement, and insurane benefits Value of property set apart from E.D. Contributions to increase or decrease the value of amrital property (including as a homemaker) Standard of living while married Economic circumstances of each when division is effective Tax ramifications Liquidation expenses Custodian as minor dependent children

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Martial asset v. Seperate Asset v. Marital Property

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Item may be acquired during marriage but only in one spouses name, and exists as a seperate asset but is not seperate property Acquired during the marriage is marital property Some assets may have a marital and non-marital component, and the non-marital component is seperated and not subject to E.D.

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Overuling trial judge's Equitable Distribution

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Trial judge has broad discretion in making division of property in domsectic cases, and its discretion will be upheld absent clear evidence of abuse of discretion

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Professional Licenses: Pennsylvania

answer

In PA, professional licenses are not to be considered in E.D. of property

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Equitable Distribution: Pension and Retirement Funds

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ERISA permits a Qualified Domestic Relations Order (QDRO) to equitably distribute pension and retirement funds QDRO must specify how taces are to be handled Always a good idea to have the pension adminstrator take out the taxes prior to distribution to your client/the spouse

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Equitable Distribution: SSD/SSI

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Cannot be assigned But children can get derivative support benefits for SSD

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Fault in E.D. of property

answer

Fault and marital misconduct are not a factor considered by the Court/Judge in determining E.D. of marital property in PA The value of marital property is the value, regardless of the reasons for the split Fault is also not a factor in child support, as the child deserves what the child deserves

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Law of Dissipation

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Dissipation of marital assets may be recouped depending on timing and purpose Transactions must have taken place at a time when the marriage had already broken down Transaction must have been for a non-marital purpose, not within the normal contemplation of use of marital funds All jurisdictions permit consideration of economic fault in division of marital assets

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Alimony

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Spousal support Entitlement award (because you got married) or Earned award (because of what you did during the marriage) Must prove you need it to survive Fault CAN be a factor, resulting in bigger or smaller award Typically concerns the ongoing payments after the marriage ends

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Alimony: Gender Based Restriction Statutes

answer

Aimony statute is unconstitutional if it makes different standards of paying or receiving alimony based on gender Not rationally related to any legitimate state objective

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Spousal Support: Timeline Chronology

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Generally, alimony is classified according to duration and purpose 1. Prior to divorce being filed: SPOUSAL SUPPORT 2. Divorce filed, but still litigating: ALIMONY PENDENTE LITE 3. Divorce is final: ALIMONY

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Alimony: Social Policy

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The primary social policy behind alimony is generally to rehabilitate, if possible, the dependant spouse to economic self-sufficiency Statutes if the state have rehabilitation as the main goal, but also allow numerous variations (depending on the state) for different types of alimony for different purposes

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Alimony: Variations

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1. Rehabilitative: \"transitional\" or \"short term\" 2. Reimbursement: because of enhancement to the other's earning capacity 3. Bridge The Gap: \"limited duration,\" defined not by purpose or reason but simply by limited duration 4. Permenant/Indefinite/Periodic 5. Lump Sum: single payment not subject to modification

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Alimony and Illness

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Alimony can be allocated to provide not only the money to continue the accustomed standard of living, but also the cost of additional care based on the dependant spouse's physical and mental health However, the court will not provide alimony in anticipation of a future illness

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Termination of Alimony: Cohabitation in PA

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In PA, cohabitation with the opposite sex in an intimate relationship will terminate alimony However, PA will not recognie cohabitation with the same-sex in an intimate relationship as grounds to terminate alimony Other states do have gender-neutral alimony statutes

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Enforcement of Alimony Awards

answer

Bring lawsuit for enforcement Creative means for assuring or securing payment (coming from the agreement, court order, or statute) Attachment of wages Incarceration

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Military Enforcement of Alimony

answer

Uniformed Services Former Spouses Protection Act allows courts to distribute a military servie member's retirement pay to former spouses, under Defense Department enforcement authority if: 1. marriage was for at least 10 years 2. service was at least 10 years during the marriage 3. spouse does not get more than 50% of disposable retirement pay 4. No enforcement proceeding while on active duty (spouse must wait)

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Modification/Termination of Alimony: Petitioner

answer

Unless the alimony order specifically prevents modification, obligor or obligee spouse may normally petition the court for an increase or decrease in alimony due to an UNEXPECTED and SUBSTANTIAL change in circumstances

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Alimony Modification: Factors Considered by the Court

answer

Effect on Payer Length of Marriage Each party's current health Purpose of original alimony award Whether changes are self-induced or based on factors beyond the control of payer or payee Other relevant factors \"Non-modifiable\" in the order means that, no matter what, it can not be changed later

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EXAM QUESTION: Which is a reason to modify a modifiable alimony order? A-Drop in stock market holdings B-Quit your job C-Unemployment Compensation D-All of the Above

answer

Correct answer is C - Unemployment Compensation, because it was involuntary A is wrong because you did not need to invest in the market and when you voluntarily did, you knew it might go down in value B is wrong because you voluntarily quit your job knowing it would reduce your compensation D is wrong because A and B are not valid reasons

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Alimony Termination: Cohabitation + Intimate Relationship

answer

Having a sexual relatioship is generally a fundamental component of cohabitation alomony termination Otherwise, courts would be discouraging self-help situations such as getting a roommate to reduce expenses, which the court does not desire to do

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Finality in Alimony Termination

answer

In the majority of jurisdictions, termination of alimony is final and irrevocable You can not get it back

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Alimony Taxation

answer

Generally, alimony payments are deducted from the payor's gross income such that payor does not pay tax on what is paid Generally taxable to receiving spouse However, the parties may change if both agree Classifying it as alimony to be traditionally taxed to the receiver benefits a higher-income-payor by reducing taxable income

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Congressional Criteria for Alimony

answer

1. Paid under a divorce decree or seperation instrument such as court order for support 2. Cash or cash equivalent; property awards are never alimony 3. Must end on receiver's death 4. Parties cannot file a joint tax return 5. Child support is not part of alimony

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Child Support: PA General Guidelines

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Statewide guildeline is based on the reasonable needs of the child or spouse seeking support, and the ability of the obligor to provide support Primary emphasis on net incomes and earning capacities, with allowable deductions for unusual needs, extraordinary expenses, and other factors such as party's assets Reviewed at least every 4 years

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Child Support: PA Process

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Step 1: Deomestic Relations Officer oversees conference, takes all the information, enters it into a computer, and tells the parties what the state guideline amount is Step 2: If either party disputes, that same day they go to a Hearing Officer who makes an official record of everything and mails the recomendation/decision Step 3: If either party still disputes, they have 20 days from the date of receipt to appeal to an actual judge If you disagree with the judge's decision, you appeal to Superior Court

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Child Support: Sought by Criminal Mother

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Woman is entitled to sue the father for child support even if conception occured as a result of a criminal act, such as statuatry rape, committed by the mother The state's interest in ensuring that a minor child received child support outweighs its interest in potentially detering crimes against minors - the mother's potential cuplability under criminal statutes is irrelevant to father's child support obligation under civil law

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Parental Child Support: Biology and Trickery

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Parental child support is grounded in biology Where a mother tricks a father into conceiving a child, such as lying about birth control, the tricked father must nonetheless pay child support Support depends on the child's needs and parent's ability to pay - with no regard to bad faith or parental fault into the intial support award or later modifications

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Beginning of Paternal Rights and Obligations

answer

Father has no rights until the child is born; no voice in abortion, even though a successful birth has drastic impacts on the father via long term child support obligations Father also has no responsibilities until the child is born

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Child Support Retroactivity: Pennsylvania

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PA will only permit retroactivity back to the date mother files the petition, not back to birth Cannot seek collection (file for support) once the child is emancipated which, in PA, is at age 18 or when child graduates highschool whichever is later

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Maximum Support Age

answer

Varies state to state In PA, age 18 or when the child graduates highschool; whichever is later Maximum support age can never be different for boys and girls

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Child Support and Emancipation

answer

Emancipation prior to age typically ends the parent's obligation for child support

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Child Support: Step Parents

answer

Some statutes (not PA) require step-parents to pay child support, but the obligation is usually more limited

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Child Support: In Loco Parents, Adoptive Parents

answer

If you acted as, held yourself out to be, and/or assumed the role of parents; then you are treated as a parent for obligation purposes Applies to grandparents as legal guardians or custodians or in loco parentis

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Child Support: Promissory Estoppel and Equitable Estoppel

answer

A person who promises support, treats the child as their own, or discourages contatc between the child and adoptive parents may be estopped from refusing support obligation - includes grandparents

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Child Support: College Education in PA

answer

Support obligation ends at age 18 and does not include college education PA says it is a violation of Equal Protection to require the child support onligation to include college, because intact familes would be treated differently than split families You can agree to pay, but you thereby waive your statuatory right to stop paying at age 18 You can never waive/enforce a limitation on child's right to get the minimum required by law

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Child Support: Disabled Adult Children

answer

In PA, these cases are analyzed on a case-by-case basis, and there is nothing prohibiting it from going on forever Courts have found that \"emancipation of a disabled person\" is not only financial, but also an emotional determination and other factors

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PA Guidelines Method

answer

Income Shares Model (PA and 2/3 of states) 1. Combine both parents income (net in PA) as if household were intact (and in PA, add back all voluntary deductions leaving only taxes and others only as determined on a case by case basis) 2. If either parent is under SSR ($857 per month) can not be held liable to pay 3. Apply support amount to that income, reflecting what parents would spend on child in the in-tact household 4. Exclude/adjust for heath insurance, child care, extraordinary medical, shared physical custody, other dependants, imputed income, other child support, education, and visitation transportation

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Income Shares Model: Scale for High Income

answer

The percetage of income that must be paid decreases as parental income goes up A straight calculation of income shares does not apply for parents with high income levels

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Other State Guideline Methods for Child Support - Not Pennsylvania

answer

Percentage of Obligor's Income Model (13 states) Melson Formula (Delaware, Hawaii, and Montana)

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Child Support: Imputing Income

answer

Court may impute income to a parent who voluntarily remains unemployed or underemployed Courts decide whether obligor acts in good faith, or whether it is an effort to \"shirk\" obligations to the child Once the court decides to impute, the decision turns on obligor's earning capacity

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Shirking

answer

An employment decision to reduce or forgoe income that is both voluntary and unreasonable under the circumstances

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Seek Work Orders

answer

Before imputing income for unemployment, Courts sometimes issue \"seek work orders\" directing the obligor parent to search for employment to produce or add to income

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Deviation from Child Support Guideline

answer

Applicable in PA By Congressional mandate, states apply a rebuttable presumption that the guideline amount is correct Court may deviate, depart from, adjust, or vary the guideline amount, up or down, but only on a written or specific finding that guideline amount would be unjust or inappropriate in this specific case Exception, not the rule The deviating judge MUST explain his decision in writing

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Child Support: Extensive Visitation

answer

Extensive visitation may trigger a support reduction if the child is spending extensive time with the non-custodial parent

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Child Support: Child's Resources

answer

Child's financial resources may trigger adjustment, but it is not a solely determinative factor such that it will completely relieve parent(s) of obligations to financially support the child

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Child Support: Deviation based on Parental Agreement

answer

Legitimate incidents of parental aithority and control are entitled to serious consideration by the court Agreement is always subject to court approval Simple test: is it in child's best interest

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Child Support: Special Considerations for High Income Obligors

answer

Pre or post marital agreements making chold support not modifiable are against public policy and not permitted or enforceable If income exceeds guideline amounts, judge can extrapolate and just keep going, or stop at the top based on a \"reasonable needs\" assessment

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Discretionary Spending of Child Support

answer

Support is the right of the child, but it is paid to the custodial parent This leads to discretionary spending of child support monies, which is a frequent source of tension

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Non-Marital Children of Parents with High Incomes

answer

Regardless of whether a child is born out of wedlock, or to parents whose marriage ended in divorce - every child is entitled to a level of support commensurate with the parent's position

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Modification of Child Support Orders

answer

Child support orders define only the parent's present obligation The order remains in place until a parent seeks an up or down modification PA: can only seek a modification for MATERIAL or SUBSTANTIAL change in circumstance (something that, should the original court have known, it would have affected the decision and the order made)

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PA: Child Support Modification Letter

answer

PA sends you a letter every 3 years telling you you are entitled to review of child support; but the review must be requested

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Child Support Modification for Unemployment

answer

Courts may grant downward modification of child support - at least temporarily - while the affected person seeks reemployment

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Child Support: Misc. Potential Reasons for Adjustment

answer

Lottery winnings Personal injury recovery Inkind payments (company cars, free housing, etc.) Inheritance Severance pay Obligor's health and healthcare needs Child's health Incarceration

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Child Support: Parent's obligation to new family

answer

States disagree about whether; and if so, how; a parent's obligation to a new family may affect the support obligation to children of a previous marriage In PA: all children are treated equally

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Child Support Modification: Clean Hands Doctrine

answer

Party seeking equity from the court must come with \"clean hands\" May be invoked against a parent who, having failed to pay past-due child support, now seeks modification of future obligations

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Child Support: Cost Of Living Adjustment (COLA)

answer

Parties may agree to inclusion of COLA in an initial order Courts are generally receptive to agreements which are designed to maintain the status quo over time and have any chance (no matter how slight) to reduce coming back to the court for future modification

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Child Support: New Spouses Income

answer

While income may be imputed in a child support action, a court will not directly consider an obligor parent's new spouse's income as a direct resource for child support of the obligor parent's children from a previous marriage EXCEPTION: The state guideline is based on the obligor parent having to cover normal and neccessary household expenses and, in the event a new spouse is shown to cover all those expenses such that the obligor is not required to pay them, the court may deviate from the guideline

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Child Support Enforcement

answer

Some force comes from \"Personal Responsibility and Work Opportunity Act\" of 1996 Estoablished Temporary Assistance to Needy Families (TANF) program Places a time limit on welfare National Child Support Enforcement including a national hiring database to attach wages of noncompliant parents Allows state enforcement by way of driving and professional licenses including law in some states, BUT NOT LAW LICENSE IN PA Attach all manners of winnings and income, freeze bank accounts, IRS Intercept of refund, and sell assets

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TANF: Assignment of Right to Collect Child Support

answer

Federal Statute requires mothers receiving TANF benefits to assign the right to collect child support to the state

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Child Support Compliance: Civil Contempt Power

answer

Courts may jail a parent for willful failure to pay child support in violation of a court order Incarceration does not offend state constitutional provisions prohibiting imprisonment for debt because child support is not a debt at all, but a duty which biological or adoptive parents owe to their dependent children, and to society

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Child Support: Federal Enforcement

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It is a federal crime to not pay supprot of a child in another state, for longer than one year or more than $5,000 It is a federal crime to conduct interstate or foreign commere with the intent to evade child support obligations

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Child Support: Priority Debt in Pennsylvania

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In PA, child support is a priority debt Kids come first You must reduce your lifestyle to what you can afford after you pay for your children, as the court does not care about your bills, expenses, etc Health and perscriptions are considered

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Custody v. Visitation

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Custody is where the child is spending life Visitation is when a parent gets to see the child in the other parent's home Visitation is usually applicable when a parent has not been involved in the child's life for a long period

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Partial Custody

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Physical custody some of the time, with the ability to take the child anywhere not dangerous or inappopriate

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Shared Custody

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Not neccessarily 50/50, though it can be

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Primary Physical Custody

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With whom the child lives the majority of the time Usually also includes designation as \"legally determining parent\" in the event of disagreement over shared-legal-custody-decisions

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Joint Physical Custody

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Generally confers on both parents shared day-to-day decision making and responsibilities for the child, and the right to have the child divide time roughly equally between both homes

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Legal Custody

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Ability to make the major decisions - such as education, medical care, and religion - in the child's life Usually shared by the parents, but with the parent with Primary Physical Custody being the ultimate decider in the event of disagreement

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Joint Legal Custody

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Confers shared ability on both parents to decide issues related to the child's upbringing

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Custody: Private Agreement

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Most parents reach custodial agreements without judicial intervention Even still, courts must review and approve

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Child Custody: Constitutional Considerations

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Parent's constitutional rights in child custody disputes are grounded in constitutional law giving parents the right and liberty interests in the acre, custody, and nurturing of the child Involves two constitutional areas: 1. Due Process Clause 2. Gender Equality

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Child Custody: Due Process Issues

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Parent is presumed to be honoring the child's best interest Only when there is a powerful protection interest vested with the government do parent's rights become secondary Parent must be unfit or unavailable (deceased or incarcerated) to remove a child from an intact home Never a concern between two fit and available natural parents as they both have the same rights

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Child Custody: Gender Equality Issues

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Started with historical preference of kids going with father (Pater Familias) Then switched to preference to the mother, unless she is unfit (Tender Years Doctrine) In modern times, Gender Equility (Tender Years is still alive but only one of numerous factors and not solely determinative)

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Custody Involving Non-Parent

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Natural parent always has preference Can not use \"best interests\" analysis when it is Natural Parent v. Non-Parent

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Custody: \"Best Interest\" Factors

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No age when child decides for himself (ultimatly the child's best interests - not his wishes - are what matters) Status quo Gender roles and careers Domestic violence history Sexual behavior Sexual orientation Home enviornment and health issues Race Siblings De Facto Parents Parent by estoppel

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Best Interest Factors: Sexual Behavior

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In order to establish that a parent's immoral behavior warrants denial of custody, objecting parent must demonstrate a NEXUS between the behavior and harm to the child

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Best Interest Factors: Sexual Orientation

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Three analysis: 1. Nexus Test: sexual preference and harm to child 2. Per Se: should not get custody if gay, lesbian, bisexual, or transgender 3. Middle Road: not solely determinative but also not automatically OK if there is no nexus to harm

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Best Interest Factors: Race

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The Fourteenth Amendment does not permit the consideration of potential/perceived effects due to racial perjudice against mixed-race families in child custody matters

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Best Interest Factros: De Facto Parents

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Four elements to \"parent-like\" relationship: 1. Biological or adoptive parents consented and fostered the relationship 2. Lived with the child in household 3. Assumed obligations of parenthood by taking significant responsibilities for care, education, and development including contributions to the child's support (not neccessarily financial) with not exception od repayment or compensation 4. Has been in a parental role for a length of time sufficient to establish, with the child, a bonded dependent relationship that is parental in nature

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Best Interest Factors: De Facto Parents (Pennsylvania)

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PA Supreme Court has held that a DeFacto Parent relationship is created \"where the child has established strong psycholgical bonds\" with a non-biological parent figure who \"has lived with the child, provided care, nurture, and affection and assuming, in the child's eyes, a stature like that of a parent\" Similiar to common law In Loco Parentis Renders formalities of legal adoption unneccessary

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Psychological Evaluation in Child Custody

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Only true barometer that has any chance of being objective Time element: quickest way to sort details without havign to air everything in court Not solely determinative

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Totem Pole of Custody

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1. Primary Physical Custody (most time and legal) 2. Shared Physical / Shared Legal 3. Partial Custody / Shared Custody (take child but minority of the time) 4. Visitation - you go to place designated by other parent (a form of supervised custody with the other parent or supervisor) 5. Supervised Custody/Visitation (where flight risk or danger to child is a concern)

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Relocation: PA definition

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A change in residency of the child which significantly impairs the ability of the non-relocating parent to excercise custody rights If you are going to try and move with the child to any area that will inconvenience the other parent NO RELOCATION CAN OCCUR UNLESS THERE IS MUTUAL AGREEMENT OR COURT APPROVAL (you can no longer just move and ask for forgiveness later)

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Illegal Relocation and Burden of Proof

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Moving without agreement or Court approval is contempt of court Burden of Proof is on the relocating party to show why the move is in the child's best interest

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Relocation: Factors

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Child relationship with all parents, siblings, etc. Child's age, development, and needs of the child Impact of relocation on child's development Possibility of suitable adjustments (summer, holidays, etc.) Child's preference Are you moving to hurt, or put distance between child and, other parent? Enhancement to relocator from relocation Enhancement to child from relocation Abuse and risk of har to the child Any other \"best interest\" factors

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Child Custody: Standing

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Moving party must have the ability to bring the action

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Standing in Primary Custody

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Presumption favors natural parents, even over grandparents Third party has no standing unless they acted in loco parentis for at least 12 months EXCEPTION: Grandparents (not in loco parentis for 12 mos or greater) can bring complaint for full custody if 1 of 2 things: 1. Child is found by juvenile court to be \"dependent\" (parents are so bad that the juvenile court says they no longer have natural rights); or 2. Child is at risk due to abuse, neglect, drug or alcohol abuse

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Standing in Partial Custody

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Presumption favors natural parents Grandparents have \"extended position\" in certain circumstances: 1. In loco parentis gradparents are not required to seek full custody...it also gives them preference in partial custody action 2. The child's parent (the grandparent's child) is dead 3. Parties have seperated for more than 6 months (\"Grandparent's Accelerated Position in Partial Custody Action of Non Intact Family)

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Grandparent Custody Action: After Standing is Established

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Court considers: 1. Status Quo: historical relationship between child and grandparents 2. Does contact with grandparents interfere with the parent-child relationship? 3. Is contact with grandparents in best interest of the child?

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PA Statuatory Requirements for Grandparent Standing in Custody

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Parents are divorced One parent is deceased Grandparent has been primary caregiver for more than 12 months (In Loco Parentis) Child is endangered by being with parents

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Same-Sex Partner Standing in Visitation

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Must qualify as In Loco Parentis No specific standing for same-sex partner / same-sex parent

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Welfare and Paternity

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If mother is on welfare, you must keep naming the potential fathers until paternity is established

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Marriage and Divorce Agreements

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Outcome of most divorces is controlled directly by some agreement of the parties 1. Agreement made before marriage (Premarital, Prenuptial, Antenuptial); or 2. Agreement made after marriage but prior to marital breakdown (Postmarital, Postnuptial, Midmarriage); or 3. When parties are seperating or contemplating divorce (Seperation Agreement); most common

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Marriage and Divorce Agreements: Modern Law

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Today, most states not only permit but also affirmatively encourage private settlement in divorce Agreed terms on alimony and property distribution are now presumptively binding on the parties Private bargaining over child support, custody, and visitation are subject to greater scrutiny

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Jurisdictional Standard for Marriage/Divorce Agreements

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Most jurisdictions have imposed special duties of disclosure and fair dealing, continuing to hold that the marital context requires some special limitations on freedom of contract

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Marital Seperation Agreement

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Contract of Physical Seperation Two aspects: declares physical seperation and outlines settlement of the rights and obligations arising from the marriage relationship

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Seperation Agreement and Reconcilliation

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Agreement/contract is annulled, voided, or rescinded if parties reconcile and resume marital relations However, resumption of marital relations does not neccessarily rescind the agreement regarding property rights and non-alimony support. These agreements then become Reconcilliation Agreements under which the character of the property changes in consideration for continuation of the marriage

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Cohabitation Agreements

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Unmarried parties may contract with each other to resolve issues of property rights, inheritance rights, and support (aka \"Living Together Agreements\") Follow general contract law principles and are litigated in Civil - not Family - court Courts will always look closely to ascertain that the agreement has a lawful objective, and that sexual service does not constitute consideration

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Marriage/Divorce Agreements: Pennsylvania

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Agreements are granted and enforced with the same authority as court orders (unless stated otherwise in the agreement) Provisions regarding child support, visitation, or custody subject to modification by the court upon a showing of changed circumstances Unless stated otherwise, the court cannot modify property disposition, interests between the parties, alimony, counsel fees, or expenses

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Premarital Agreements: Pennsylvania

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Burden of Proof is on party claiming unenforceable Setting aside the agreement requires clear and convincing evidence that: 1. execution was involuntary 2. prior to execution, there was (a) no fair reasonable disclosure of assets and liabilities, and (b) no waiver of such disclosure provided, and (c) no adequate knowledge or notice of undisclosed information Generally, Pennsylvania takes no heightened measures to assure the validty of Prenups and, so long as there was no fraud, misrepresentation, or duress it is valid

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Prenups: Statute of Frauds

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Statute of Frauds requires prenups to be in writing and signed by the party against whom enforcement is beign sought But some states soften the writing requirement by applying a doctrine of Partial Performance

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Prenups: Consideration

answer

In prenups - signed before marriage - the marriage itself is always sufficient consideration

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Prenups: Unconscionable

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Even ordinary contracts are unenforceable when the terms are unconscionable, but what of prenups? Most jurisdictions review terms closely and give considerable deference to the agreement as executed

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Valid Prenup Terms

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Parties may seek to include a variety of terms But parties may not waive or limit court's authority in child support and court must always be able to ensure that custody and visitation are in the best interests of the child Most jurisdictions allow waiver of spousal support, but may invalidate it if spouse will need welfare or state benefits Non monatary terms are otherwise not enforced by the court (conduct within the marriage, tesyriction on right to seek divorce, child custody, child's religion in the event of divorce, etc.)

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Post Nuptial Agreement: Consideration

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In post nuptial, marriage itself can NOT be consideration because the marriage has already occured when the agreement is later signed Past consideration is no consideration

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Seperation Agreements: Court Acceptance

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Courts can accept a seperation agreement as valid, and eventually can set the agreement's terms in some manner in a divorce decree In some manner: 1. Approval/Ratification; or 2. Incorporation; or 3. Merger and each manner have different consequences

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Approval/Ratification of Seperation Agreement

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The court endorses it as valid under state law and \"reasonable\" However, the agreement is not part of the divorce decree/judgment and thus only enforceable under contract principles

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Incorporation of Seperation Agreement

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Permits the agreement to be part of the Divorce Decree/Judgment, while also remaining contractually binding

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Merger of Seperation Agreement

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Agreement becomes fully absorbed and a part of the judgment and may no longer be enforced as a seperate contract A court may enforce a merged agreement, like any judgment, by contempt of court

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Modifications of Seperation Agreements

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Absent a provision barring modification, incorporated or merged agreements may be modified after entry of the judgment on the same grounds permitted for modification of any court order Agreements not incorporated or merged into the decree can be modified by the parties in accordance with ordinary contract law

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Limiting Provisions on Modification: Seperation Agreements

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Nearly all jurisdictions recognize the validity of a limiting provision which bars or limits future modification - but never for terms related to custody, visitation, or child support

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Voiding Seperation Agreements

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Agreement regarding alimony and property are \"presumptively binding\" absent proof of fraud, duress, or unconcionability Courts are generally not eager to rush in and find deals unconcionable as the court would rather tolerate hard bargains in absence of fraud or duress

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EXAM QUESTION: A couple was married and, every year, dad took the 2 kids to Florida to visit dad's parents for two weeks. Mom sometimes went. One year, mom does not go and dad files for custody in Florida and serves mom in the state she is in. Issues?

answer

Under International Shoe, there are no sufficient minimum contacts with Florida. No one intends to remain in Florida. Is Florida the home state for dad if he takes a leave of absence from work and takes a job in Florida for two weeks? No, as he did not wuit his job and has no expression of intent to remain in Florida.

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Federal Courts: Domestic Relations

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Domestic Relations Exception: A Federal Court will not excercise diversity of citizenship jurisdiction over actions involving divorce, alimony, property distribution, child custody, or visitation BE CAREFUL: Other actions that INVOLVE family but are not in these categories are NOT exceptions

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Divorce Jurisdiction

answer

Before granting a divorce, the state court must have SUBJECT MATTER and PERSONAL jurisdiction If both parties are domiciled in the same state, clearly the court can assert jurisdiction

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Migratory Divorce

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Divorce granted by one state (which has typically been labeled a \"divorce mill\") to a spouse(s) who had only recently moved there from another state (usually a state which took a dim view of divorce)

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Ex Parte Divorce

answer

Any state has jurisdiction to grant a divorce when only one party is legally domiciled in that state, and all other states must recognize these divorces Divorce is available based on the domiciled spouse's domicile, regardless of whtehr a court has personal jurisdiction over the other spouse (but a court may award alimony or property distribution ONLY where it has personal jurisdiction over both)

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General Appearence in OTHER than your home state

answer

If you make a general appearence, or hire an attorney to make general appearence, in a foreign state to conteast the divorce, then that state automatically gets personal jurisdiction over you Instead, make SPECIAL appearence to contest jurisdiction

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Durational Residency Requirement

answer

Durational residency requirments are constitutional States require residency for a specified period of time before you may ask a court to issue a divorce decree PA RULE: you must be a bona fide resident of PA for 6 months before you can file for divorce

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Foreign Country Divorces

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If a foreign divorce was granted for the same reason a state would grant a divorce, then the court should recognize the foreign divorce EXCEPTION: Party in the foreign divorce proceeding was not afforded procedural due process

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Divisible Divorce Doctrine

answer

Divorce whereby the marriage itself is dissolved; however, the issues incident to divorce (alimony, child custody, and visitation) are reserved until a later proceeding (usually in a different state or states) The court typically has subject matter jurisdiction and personal jurisdiction over one spouse, but lacks personal jurisdiction over the defendant spouse The Ex Parte Divorce decree is given Full Faith and Credit only as to the dissolution of the marriage and no economic issues are involved such as alimony or support

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Divisible Divorce Doctrine: Subsequent Proceeding

answer

Where a foreign state does not have personal jurisdiction over both spouses, the personal proeprty rights of the parties may be litigated in another state seperate from a divorce decree issued in another jurisdiction

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Child Custody Jurisdiction

answer

Asks questions of: When can an action be filed, and where can a decree be entered? When must other states respect that decree? What states may modify an original decree?

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Child Custody: Residence Requirment for Initial Custody Filing

answer

In PA, you must be domiciled in PA for 6 months before filing an initial custody complaint NO RESIDENCY REQUIREMENT FOR CHILD SUPPORT

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Three Types of Original Child Custody Jurisdiction (where an original custody complaint can be initially filed)

answer

Originally established by Uniform Child Custody Jurisdiction Act (UCCJA) 1. Home State Jurisdiction 2. Significant Connection Jurisdiction 3. Emergency Jurisdiction

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Child Custody: Home State Jurisdiction

answer

Parental Kidniapping Prevention Act (PKPA) of 1980 elevated Home State jurisdiction to first and highest preference and allows other options only if no state qualifies as home state State where child resided 6 months before the action is initiated Dormant initial action (filed 6 months ago, then sat on it) does not qualify Partial custody with a parent elsewhere does not destroy the 6 month duration, nor will it destory the state's Continued Exclusive Jurisdiction)

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Child Custody: Significant Connection Jurisdiction

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Taking jurisdiction is in the best interest of the child, and at least one parent has a significant connection to the state

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Child Custody: Emergency Jurisdiction

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Child present in the state and abandoned, abused or in danger; OR No other state has jurisdiction

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Parental Kidnapping Prevention Act (PKPA) of 1980

answer

1. Gives Home State Jurisdiction the first and highest preference 2. Applies to all interstate custody matters 3. Mandates full faith and credit to custody orders that comply with statute 4. Allows CEJ in home state so long as chold or one parent still lives there

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Child Custody Jurisdiction: Consent

answer

Consent from both parents trumps everything

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UIFSA

answer

Uniform Interstate Family Support Act

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Child Custody: Modification Jurisdiction

answer

The original state which issued the order maintains Continued Exclusive Jurisdiction and is the only state where the order can be modified; UNLESS neither parent nor the child live in the state any longer. In this case, modification jurisdiction is no longer appropriate and another state will be able to seek jurisdiction to modify the order

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Child Custody: Seeking Modification Jurisdiction

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A party seeking to acquire modification jurisdiction in a new state must first register the initial order in the new state. Then, the new state may only obtain modification jurisdiction if: 1. The state meets the criteria such that it would now have original jurisdiction to issue a support order if this were a new case; AND 2. The other original state has, in fact, lost CEJ

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Intespousal Tort Immunity (PA)

answer

Completely abolished in 1981

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Parent-Child Tort Immunity: Insurance Cases

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Immunity is not available in cases where insurance coverage provides protection and pays damages

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Parent-Child Tort Immunity: Sexual Abuse

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Immunity is not available because the family harmony has already been destroyed by the abuse, perhaps even moreso than the tort claim could ever destroy it

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Spousal IIED

answer

Prima Fascia case for IIED is the same for spouses, with no special standard: 1. Extreme and outrageous conduct 2. Intended to inflict severe emotional distreee or done with knowledge that there is a high probability that severe ED will occur 3. Severe ED did result

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Spousal IIED: Morally Offensive Conduct

answer

Mere morally offensive conduct and obnoxious conduct in the marital setting is not enough to sustain a cause of action for IIED, where the conduct must actually be extreme and outrageous

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Family Court: Jury Trial

answer

Typically not available

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Heart Balm Torts

answer

At common law, a group of tort causes of action protecting interests in family relations against intentional disruption from outsiders In recent times, the tide has turned against these torts; and the few jurisdictions where they persist will construe then narrowly and limit remedies available

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Heart Balm Tort Action v. Other Causes of Action

answer

You can not specifically file HBT action; however, depending on the circumstances, you may have another action in civil (not family) court For example, if you planned and paid for a wedding and the other party called it off, you do not have a HBT action but likely have a civil cause of action claim for damages

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Engagement Ring

answer

Can get it back, or its value Exception: An engagement ring given on a holiday is presumed to have also been a gift and not entitled to seek return

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Bakruptcy Reform Act

answer

Categorizes all alimony, spousal support, property distribution, and child support under the umbrella title of \"Domestic Support Obligations.\" None are dischargable in bakruptcy.

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Agreement and Spousal Support: Agreement Language

answer

If agreement does not include spousal support, but also does not address it, the Court can find it to include or not include spousal support If an agreement intentionally waives and does not intend to include spousal support, write it that way: \"Parties acknowledge there is no spousal support, it is waived, and this agreement shall never be construed as having not addressed the issue.\"

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Property Settlement Payments: Death

answer

Property settlement payments do not terminate on death If the agreement states that payments terminate on remarry or death, then the payments are spousal support, not property settlement

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Property Settlement Agreements: Tax Benefits

answer

May try to catergorize certain obligations as something else for tax benefits, but the court will endeavor to attempt to discern what the payments/debts really are. i.e.) If an agreement does not address spousal support but contemplates property settlement payments that terminate on death or remarry, and the receiving spouse attempts to add on support at a later time claiming it was never addressed by the agreement, the court may find the property settlement payments to actually be support payments and not accept the reciving spouse's argument

Family Law – Pennsylvania Focus

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