Marital Property and Non-Marital Property

Equitable distribution is the legal term for dividing marital property upon divorce. The term refers to any increase in value of property that occurs during the marriage. Often, most of the property that a married couple owns is marital, but not always.

The source and time of purchase of a piece of property determines whether it is marital property or not. The hard work of the parties is the most common source of property. The benefits of hard work are split between the parties on the assumption that each party helped the other.

But other property is not. Inheritances are the most common example. Gifts are also not marital property. Disability payments are usually not included in marital property.

Note that this rule does not apply if the parties mix the inheritance into communal funds. The issue that comes up in divorces is how much mixing is necessary. If the funds can be clearly traced or have survived in an account in the name of one party alone, those funds will not be marital property. If the parties to the divorce mixed separate funds together, for instance, to come up with a down payment for a house, then the funds are marital property.

In an important case for Pennsylvania on this issue, the Superior Court stated:

Pennsylvania, not being a community property state, retains the separate property concepts derived from common law. We, in addition, have rejected ...theories which permit no change in the character of property separately acquired, regardless of contribution by the other party (inception of title -- source of funds) or transforms ownership of separate property into community property if there is the slightest commingling of property (transmutation). Anthony v. Anthony, 355 Pa.Super. 589, 514 A.2d 91 (1986). (Quoted in Winters v. Winters, 355 Pa. Super. 64; 512 A.2d 1211.)

Plenty of room for arguing exists here. In this future, I will give some examples of issues that have come up in this area, so if you are interested, tune in and leave comments.

The Pennsylvania Divorce Statute

§3103. Definitions.

The following words and phrases when used in this part shall have the meanings given to them in this section unless the context clearly indicates otherwise:

"Alimony." An order for support granted by this Commonwealth or any other state to a spouse or former spouse in conjunction with a decree granting a divorce or annulment.

"Alimony pendente lite." An order for temporary support granted to a spouse during the pendency of a divorce or annulment proceeding.

"Divorce." Divorce from the bonds of matrimony.

"Grounds for divorce." The grounds enumerated in section 3301 (relating to grounds for divorce).

"Irretrievable breakdown." Estrangement due to marital difficulties with no reasonable prospect of reconciliation.

"Qualified professionals." Includes marriage counselors, psychologists, psychiatrists, social workers, ministers, priests, rabbis or other persons who, by virtue of their training and experience, are able to provide counseling.

"Separate and apart." Cessation of cohabitation, whether living in the same residence or not. In the event a complaint in divorce is filed and served, it shall be presumed that the parties commenced to live separate and apart not later than the date that the complaint was served. The 2004 amendment to the definition of "separate and apart" establishes a rebuttable presumption designed to address the difficulty of proving a separation date, especially when the parties have not established different residences.

"Spousal support." Care, maintenance and financial assistance.

§ 3301. Grounds for divorce.

(a) Fault. The court may grant a divorce to the innocent and injured spouse whenever it is judged that the other spouse has: (1) Committed willful and malicious desertion, and absence from the habitation of the injured and innocent spouse, without a reasonable cause, for the period of one or more years; (2) Committed adultery; (3) By cruel and barbarous treatment, endangered the life or health of the injured and innocent spouse; (4) Knowingly entered into a bigamous marriage while a former marriage is still subsisting; (5) Been sentenced to imprisonment for a term of two or more years upon conviction of having committed a crime; (6) Offered such indignities to the innocent and injured spouse as to render that spouse's condition intolerable and life burdensome.

(b) Institutionalization. The court may grant a divorce from a spouse upon the ground that insanity or serious mental disorder has resulted in confinement in a mental institution for at least 18 months immediately before the commencement of an action under this part and where there is no reasonable prospect that the spouse will be discharged from inpatient care during the 18 months subsequent to the commencement of the action. A presumption that no prospect of discharge exists shall be established by a certificate of the superintendent of the institution to that effect and which includes a supporting statement of a treating physician.

(c) Mutual consent. The court may grant a divorce where it is alleged that the marriage is irretrievably broken and 90 days have elapsed from the date of commencement of an action under this part and an affidavit has been filed by each of the parties evidencing that each of the parties consents to the divorce.

(d) Irretrievable breakdown. (1) The court may grant a divorce where a complaint has been filed alleging that the marriage is irretrievably broken and an affidavit has been filed alleging that the parties have lived separate and apart for a period of at least two years and that the marriage is irretrievably broken and the defendant either: (i) Does not deny the allegations set forth in the affidavit. (ii) Denies one or more of the allegations set forth in the affidavit but, after notice and hearing, the court determines that the parties have lived separate and apart for a period of at least two years and that the marriage is irretrievably broken. (2) If a hearing has been held pursuant to paragraph (1)(ii) and the court determines that there is a reasonable prospect of reconciliation, then the court shall continue the matter for a period not less than 90 days nor more than 120 days unless the parties agree to a period in excess of 120 days. During this period, the court shall require counseling as provided in section 3302 (relating to counseling). If the parties have not reconciled at the expiration of the time period and one party states under oath that the marriage is irretrievably broken, the court shall determine whether the marriage is irretrievably broken. If the court determines that the marriage is irretrievably broken, the court shall grant the divorce. Otherwise, the court shall deny the divorce.

(e) No hearing required in certain cases. If grounds for divorce alleged in the complaint or counterclaim are established under subsection (c) or (d), the court shall grant a divorce without requiring a hearing on any other grounds.

§3304. Grounds for annulment of void marriages.

(a) General rule. Where there has been no confirmation by cohabitation following the removal of an impediment, the supposed or alleged marriage of a person shall be deemed void in the following cases: (1) Where either party at the time of such marriage had an existing spouse and the former marriage had not been annulled nor had there been a divorce except where that party had obtained a decree of presumed death of the former spouse; (2) Where the parties to such marriage are related within the degrees of consanguinity prohibited by section 1304(e) (relating to restrictions on issuance of license); (3) Where either party to such marriage was incapable of consenting by reason of insanity or serious mental disorder or otherwise lacked capacity to consent or did not intend to consent to the marriage; (4) Where either party to a purported common-law marriage was under 18 years of age. (b) Procedures.--In all cases of marriages which are void, the marriage may be annulled as set forth in section 3303 (relating to annulment of void and voidable marriages) or its invalidity may be declared in any collateral proceeding.

§ 3305. Grounds for annulment of voidable marriages.

(a) General rule. The marriage of a person shall be deemed voidable and subject to annulment in the following cases: (1) Where either party to the marriage was under 16 years of age unless the marriage was expressly authorized by the court; (2) Where either party was 16 or 17 years of age and lacked the consent of parent or guardian or express authorization of the court and has not subsequently ratified the marriage upon reaching 18 years of age and an action for annulment is commenced within 60 days after the marriage ceremony; (3) Where either party to the marriage was under the influence of alcohol or drugs and an action for annulment is commenced within 60 days after the marriage ceremony; (4) Where either party to the marriage 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; (5) 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.

(b) Status of voidable marriage. In all cases of marriages which are voidable, either party to the marriage may seek and obtain an annulment of the marriage but, until a decree of annulment is obtained from a court of competent jurisdiction, the marriage shall be valid. The validity of a voidable marriage shall not be subject to attack or question by any person if it is subsequently confirmed by the parties to the marriage or if either party has died.

What counts as a will in Pennsylvania? What is a Codicil?

Pennsylvania is very liberal in finding wills. A will is a statement of testamentary intent that is either in the Testator's handwriting or is signed at the bottom by some form of signature, including initials and personal marks. A small difference, a legality really, is the difference between a will and a codicil. The difference is that a will usually replaces all prior wills. A codicil is simply an addendum, i.e., something that you forgot and are now adding to the will. For example, a handwritten note found amongst the valuables and papers of a Decedent was held to be a codicil and amended the will. In re Hengen's Estate, 55 Montg. 327 (1939).

Under this view, a group of testamentary wishes that you jotted down may be put together to form your will. The only problem would be if you contradicted yourself from one page to the next. Therefore, even if you create what appears to be a will, if the writing seems to be simply an addition to a former will, the Courts of the Commonwealth may hold that it is a codicil and that the former will is not revoked. In re Bingaman's Estate, 127 A. 73, 281 Pa. 497, Sup.1924. Wills 476.

An interesting side note here is the Pennsylvania case law that allows a codicil to adopt a revoked will. Let's say that you executed a will. Then you change your mind and execute a new will which revokes the first will. Will number two is now in effect. But if you now write a simple testamentary wish down that refers to the first will, that first will and the codicil are now in effect. The second will has now been revoked. The lesson is to make sure that you keep your dates and wills straight when you jot down your wishes. Remember, even a napkin with coffee stains on it can act as a codicil if you put down the required testamentary intent. Neff's Appeal, 48 Pa. 501, 1865, affirming 5 Phila. 281, 21 L.I. 236; Bradish v. McClellan, 100 Pa. 607, 1882; Lee's Estate, 16 Pa.Super. 627, 1901, affirming 15 Montg. 70, 1900; DeHaven's Estate, (No. 2,) 56 A. 404, 207 Pa. 152, 1903.

What happens if a new will does not revoke a prior will?

When you write a will, the first paragraph usually revokes all prior wills. The typical language says something like "revoking all prior wills." Along with the date, this acts as a revocation of all prior wills.

Now what if a person scribbles down his or her last wishes in a hurry and leaves out this sort of language?

Pennsylvania allows for revocation by implication, which means that when two wills clash, the later will is held to revoke the earlier one. This basically means that if a will has a later date than another will does, the newer will revokes the older will.

Under the Uniform Probate Code, such a presumption of revocation is rebuttable by clear and convincing evidence. If the subsequent will "makes a complete disposition" of the estate, the inconsistencies are revocations and replace the prior will terms. If the subsequent will "does not make a complete disposition" of the estate, the inconsistencies are merely supersession and supplement to the prior will's terms. The continuing life of the prior will depends on whether inconsistencies are effective. U.P.C. §2-507(b)-(d).

A Fair Price for Divorces

Why should a divorce in Bucks county, Pennsylvania cost more than a divorce in Mongomery county, Pennsylvania?

Why should a divorce in Langhorne, PA cost more than a divorce in Abington, PA?

Why should a divorce in Huntingdon Valley, PA cost more than a divorce in Newtown, PA?

Why should a divorce in Bristol, PA cost more than a divorce in Philadelphia, PA?

The answer is, a divorce should not cost more from one town to the next. Lawyers in one town should not charge more than lawyers in the next town over for the paperwork or per hour.

A divorce without child custody or support issues comes down to two things: a lot of paperwork that requires some thought but not too much time and negotitations over the marital property, a process that is known as equitable distribution.

If the couple that is divorcing has a lot of assets acquired over a long period of time, the negotiations are going to be more detailed and difficult. Each asset must be valued and the "equities" of the divorce have to be evaluated, i.e., the lawyers have to determine what the fair shares are.

The cost of such negotiations goes up with the number of assets because more time is needed to evaluate the assets themselves and then to discuss what the fair share of each party is. Time is money.

Even more time is required if one of the parties tries to hide assets through a small business or other family members or if either party is angry and refuses to work toward a resolution of the issues.

But for a small amount of assets that are less complex, a divorce in Pennsylvania should be a flat fee for the paperwork plus a flat fee for the estimated number of negotiations. A per hour rate for a long negotiation process is proper but the lawyer should give the client a regular update as to time and cost from the start to the finish.

I always try to do this and I know that other lawyers in Bucks County and Philadelphia do as well. Anyone considering a divorce should discuss the costs and how those costs are determined at the outset.

Factors in Pennsylvania Child Custody and Relocation Cases

Bob and Marsha live together and have three children. Although not married, they have lived as if they were.

Marsha worked straight through each of the pregnancies. She is an executive vice president and never had the chance to take time off. Bob has a high-level job, too, with no time to take off, either. But the two of them shared all of the work at home so they never thought twice about it. One of them was always there for the children.

They were happy...until the day that one of them received a job offer in another state. Now what?

First, before everything else, Bob and Marsha need to get their children to a minister or a therapist who specializes in cases like this. Relocation is tough on children.

The law takes this into consideration. Pennsylvania's custody law is found at 23 Pa.C.S. 5303. One factor in custody decisions is stability and consistency. Given a choice between disrupting the lives of the children or keeping their lives the same as they had been, Pennsylvania courts will keep the children's live stable.

But if greater opportunities are available for the children in the new location, the Courts will allow the children to be relocated. The opportunities could be anything, but often the strongest are educational.

Some of the other factors for custody include such things as:

1) extended family, siblings, friends and a support network as well as the willingness of one parent to include the other in the child's life as much as possible;

2) the duties toward the children that each parent performs, such as driving them to school each day and making accomodations for special needs or abuse perpetrated by one parent against the children.

3) the preference of the children. These are considered in light of the maturity and reasoning of the child.

Does it matter, do you think, that Bob and Marsha are not married? What about whether it is Bob or Marsha who wishes to relocate to another state?

No, these issues are irrelevant from a legal standpoint. If Bob and Marsha do not mind paying more in taxes, they can stay together without marrying.

The important issue is the town to which Bob or Marsha wishes to relocate. If Bob or Marsha feel inspired by the Unabomber to move to a log cabin in one of the more remote parts of a less developed state, live without electricity or running water, and refuse to teach the children mathematics, the Commonwealth of Pennsylvania will likely grant custody to the other parent.

If Bob and Marsha currently reside in Langhorne, Newtown or Doylestown in Bucks County, Pennsylvania, and one of them wishes to relocate to Camden or Newark, New Jersey, where the current violent crime rate is fairly high compared to Bucks County, the Commonwealth will most likely try to keep the children in Bucks County.

On the other hand, if the parent who wishes to relocate with the children will be in a good suburb of San Francisco or a town in the Catskills in New York, the decision will be much more difficult to make. Do the children have any family in the new location? Are the schools there better?

In summary, relocation cases present tough decisions for judges to make. Good representation of the case is important. In Pennsylvania, a relocation case can take a full year to make it through the court system. Such cases start in the family master's office. The family master will work hard to get the parties to come to an agreement before sending the case on through the system.

The best answer of all is for the parties to get two experienced attorneys to negotiate an agreement without ever going to the family master. Mediation is also a great alternative.

The key is for both parties to realize that the other party has rights and be ready to negotiate. A mediator or two attorneys can draft an agreement that is the same as what the court system will order, but the parties will walk away with more money in their pockets and an agreement that each is happy with.

Help for Adults with Autism

PA offers a new program to adults with autism. Read the news release at:

http://www.dpw.state.pa.us

/ServicesPrograms/Autism

/News/2008NewsAnnouncements/003677257.htm

and

http://www.krnv.com/global/story.asp?s=8485579.

The Price of Stardom is Paternity Suits

The Associated Press gives us this report from a Court in Western PA: A woman has continuously attempted to contact Michael Jordan based upon false allegations that he is the father of her child. Jordan submitted to paternity tests which came back negative, but the woman persists. Now she has been enjoined from attempting to contact Jordan again.

See the story at http://www.phillyburbs.com/pb-dyn/news/103-06132008-1548644.html.

Helpful Links

Links to blogs that I found especially helpful follow:

One of the best introductions to copyright and trademark law, as well as analysis of interesting cases, is run by Anthony Verna at nyctrademarks.com or http://tmcentlawforum.blogspot.com/. Especially noteworthy is the on-line service that he offers. No costly office visits!

Bill Mitchell has posted helpful information to help you determine whether your spouse is having an on-line affair at http://7daydetective.blogspot.com/.

Stephen M. Worrall has posted interesting material on adoptions. His practice is in Georgia, but his blog should be read by anyone interested in adopting a child. http://www.gaadoptionlaw.com/

Mr. Worrall has also posted information of interest on collaborative law at www.gacollaborativelaw.com.

For links to all sorts of law blogs, go to http://www.justia.com/.

Another good blog on divorce and custody is http://childcustodyguide.com.

Cheating Spouses and Divorce

Martial Infidelity & Divorce

Catching your spouse with another person is the biggest fear of most people. Trying to make that person pay for it during a divorce can be one of the biggest headaches during a divorce. This entry discusses Pennsylvania's divorce statute as it deals with this issue.

You have choices in trying to make your spouse pay for an infidelity. The first is Title 23 section 3301(a)2, which makes adultery one basis of fault divorce. You can start the divorce off by pointing a finger at your spouse and demanding that the court take the infidelity into account in dividing assets. After all, the divorce would not have occurred if not for the cheating.

Keep in mind that this is often a real fight. Do you have evidence? Seeing your spouse with another person at a diner does not count. No law prohibits two people from being friends just because one of them is married. Many people feel jealousy over the other person's friendships, but this is not adultery. The best evidence is sexual in nature. Private investigators are usually needed.

If you do feel jealousy over the other person's friendships, maybe you should see a counselor, pastor, priest or rabbi. Such feelings are normal and can be dealt with, but should never be allowed to control the decisions in your life. The worst decisions come from acting on pure emotion.

On the other hand, if you talk to your partner about your feelings and he or she is indifferent or enjoys making those feelings worse, then perhaps you should seek a no-fault divorce based upon irreconcilable differences. Do not point a finger. Do not feel anger. This is the kind of situation in which you should simply walk away, no questions asked. A lawyer can get you out of such a marriage with a minimum of fighting if you can get your spouse to understand and accept your decision to leave. People do manage to have reasonable, calm divorces.

Another problem with this type of divorce is that your spouse can contest it. Only the strongest evidence is beyond attack, and many times when you believe that you have clear evidence of cheating, you later find out in court that it was not as good as you thought it was. Even if you win, you will be able to look back at a long and painful struggle in court with attorney's fees that cause migraines every time you think of them.

This is the reason that Pennsylvania has enacted no-fault divorce statutes. A no-fault divorce cannot be opposed for long. This type of divorce is usually over within six months, including the distribution of property. But no-fault does not mean that the cheating is ignored. Read on.

No-fault is truly no-fault in that the divorce can go through without regard to who did what to whom. But no-fault does not completely ignore adultery. Under the alimony statute, any "marital misconduct" can be considered in awarding alimony. Section 3701(b) states: "Factors relevant. -- In determining whether alimony is necessary and in determining the natrure, amount, duration and manner of payment of alimony, the court shall consider all relevant factors, including: ... (14) The marital misconduct of either of the parties during the marriage.

The marital misconduct of either of the parties from the date of final separation shall not be considered by the court in its determinations relative to alimony; ..." Marital misconduct here includes adultery but only during the marriage up to the separation.

Proving that your spouse cheated under a no-fault alimony petition is not as difficult as under the fault-based divorce statute. However, the court has discretion and may not consider the cheating to be worthy of as high an award as you believe it does, or any award at all if the evidence of it is not strong. As the statute says, the Court "shall consider all relevant factors," meaning that the court must do so, but at the same time, the amount is left to the discretion of the judge.

Another way that cheating can be accounted for is in equitable distribution. Section 3502(a)7 makes the contribution or dissipation of marital assets a key element in dividing marital property. If your spouse purchased lavish gifts for his or her "friend," the Court can count those gifts against him or her in awarding marital property. But the gift would have to be an expensive one. Diamond rings worth thousands, luxury cars, and other large expenses are hard to overlook.

Take note of the fact that cheating alone is NOT considered in equitable distribution! As stated above, alimony is the area dealing with cheating. Equitable distribution is only involved if martial assets were depleted due to the cheating.

A final way in which the cheating spouse may be held accountable is in the child custody battle that often ensues during divorces involving custody. This is a touchy issue and you must be careful to understand what the court looks for. The only thing that the court is concerned with is the best interests of the child. As cruel as your spouse's betrayal might have been for you, the court does not consider it in your custody battle unless it shows indifference to the best interests of the children. The presumtion in such cases is that both parents love their children and that one of the parents is going to take care of children on a day to day basis while the other sees the children as often as possible. The practicalities of daily life force such a scheme on divorced parents but this has absolutely nothing to do with the cheating. Adultery is only relevant as evidence that a parent poses a threat or would be a bad influence on the child.

Be careful in fighting to deny your child his or her other parent. Think about whether you are doing so for the best interests of your child or because you are angry. Even if you are certain that your spouse is a bad influence, speak to a counselor, pastor, priest or rabbi about your child's emotional health and learn how best to help your child through such an ordeal. Do not forget that the pain that you feel is probably felt by your child as well.

I hope that this short overview of adultery and the laws of Pennsylvania has been helpful. As always, please note that this information is NOT LEGAL ADVICE and cannot replace the counsel of a lawyer who has reviewed the facts of your case with you in person. These issues are complex and require careful consideration before going into court. If you are in the Philadelphia/Bucks County area and would like to discuss your case with me, call me at 215-805-0444. Otherwise, call your local county bar association for a referral. Good luck to you!

Marital Property and Non-Marital Property

Equitable distribution is the legal term for dividing marital property upon divorce. The term refers to any increase in value of property that occurs during the marriage. Often, most of the property that a married couple owns is marital, but not always.

The source and time of purchase of a piece of property determines whether it is marital property or not. The hard work of the parties is the most common source of property. The benefits of hard work are split between the parties on the assumption that each party helped the other.

But other property is not. Inheritances are the most common example. Gifts are also not marital property. Disability payments are usually not included in marital property.

Note that this rule does not apply if the parties mix the inheritance into communal funds. The issue that comes up in divorces is how much mixing is necessary. If the funds can be clearly traced or have survived in an account in the name of one party alone, those funds will not be marital property. If the parties to the divorce mixed separate funds together, for instance, to come up with a down payment for a house, then the funds are marital property.

In an important case for Pennsylvania on this issue, the Superior Court stated:

Pennsylvania, not being a community property state, retains the separate property concepts derived from common law. We, in addition, have rejected ...theories which permit no change in the character of property separately acquired, regardless of contribution by the other party (inception of title -- source of funds) or transforms ownership of separate property into community property if there is the slightest commingling of property (transmutation). Anthony v. Anthony, 355 Pa.Super. 589, 514 A.2d 91 (1986). (Quoted in Winters v. Winters, 355 Pa. Super. 64; 512 A.2d 1211.)

Plenty of room for arguing exists here. In this future, I will give some examples of issues that have come up in this area, so if you are interested, tune in and leave comments.

Divorce and your Sanity

Getting a divorce is common in this day and age. Also common are books, self-help groups, and many other resources for getting a person through a divorce. Our society has moved from laws that restricted divorce to certain causes of action such as adultery to no-fault divorce laws. Part of the reason for this change in the law was the fact that many people were more than happy to lie in court about adultery to get a divorce, oftentimes with the consent of their spouse.

So we should be pretty good about divorce as a society, shouldn't we? But we are not.

In some cases, part of the reason is found in the attorney-client relationship. The psychological stress of divorce makes the client angry and vulnerable. The client looks to an attorney for answers. At such a time, the legal advisor becomes the biggest influence in that person's life.

Some attorneys, however, have had divorces themselves or have been through bad relationships and, because of this, identify with the client's situation more closely than a neutral counsellor should identify with the person that he or she is supposed advise.

The anger of the client turns into an overly aggressive legal strategy that offers no possibility of compromise. The parties end up in a divorce trial. The legal bills add up to around $10,000 or more.

Anger adds up to more anger. In the end, many people turn their anger towards the lawyer who led them on the path of anger. Others simply become bitter about life.

Here is the answer: find the right lawyer. Your lawyer should describe a legal strategy that is filled with anger or hatred. For example, the lawyer's language should not use phrases such as we can get him/her this way or that way. You should be given a description of your legal rights that is neutral.

For example, if your spouse cheated on you or mistreated you in other ways, you can demand alimony. This is a legal right, not a way of lashing out or paying the person back.

Getting away from the anger is an important part of keeping your sanity and beginning to plan for your future.