Legal custody allows you as a parent to make major decisions on behalf of your child. If your child has special needs, legal custody provides you the right to have a voice in your child’s special education program at school. Children identified as having a need for special education and related services are to be provided with a free and appropriate public education. The law requires that a team of individuals develop an Individualized Education Plan for your child. Parents are a part of this team. If the parents are separated but share legal custody of their child, then both parents have equal rights to contribute to the educational plan of their child.

Recently, I worked with the Pennsylvania Bar Association and helped launch a statewide campaign entitled “Have a Voice in Your Exceptional Child’s Education.” “The campaign provides basic information to parents and guardians about the special educational rights of children, information about the evaluation processes that are to be followed to identify disabilities and giftedness, and overviews of the steps schools are to follow to provide educational programs, support and services to address the evaluation findings.”

For more information on this campaign and to learn more about the special education rights of your child, please click here.

The law in Pennsylvania states that no spouse is entitled to receive an award of alimony where the spouse, subsequent to the divorce pursuant to which the alimony is being sought, has entered into cohabitation with a person of the opposite sex who is not a member of the spouse’s family within the degrees of consanguinity. Cohabitation can be shown according to the Pennsylvania Superior Court “by evidence of financial, social, and sexual interdependence, by a sharing of the same residence, and by other means.”  Moran v. Moran, 839 A.2d 1091, (Pa. Super. 2003). 

When alimony is awarded by the courts, one spouse provides payments to the other spouse to care for their reasonable needs after a divorce. The higher earning spouse pays alimony to the lesser earning spouse. The amount of alimony is based upon such factors as the lifestyle and standard of living during the marriage, the ability of a spouse to adequately support themselves through appropriate employment and the ability of the higher earning spouse to pay.

Pennsylvania views alimony as a fair and equitable result of divorce. Its purpose is not to punish the paying spouse nor reward the receiving spouse. When a spouse is cohabitating, and simply living with their boyfriend or girlfriend, their financial needs change. They no longer need their ex-spouse to financially contribute to help them meet basic needs, their paramour or significant other can assist and share in the expenses for the necessities of life. To require the higher earning spouse to continue making payments in Pennsylvania to an ex-spouse that is cohabitating would not be fair.

A Philadelphia Common Pleas Court Judge has granted an immediate appeal from an Order dismissing a claim for loss of consortium from one of the parties to a same sex marriage. The underlying claim involves a medical malpractice claim filed against Temple University Hospital by a same sex couple named Wolf.  Judge Gregory Smith signed an Order granting the immediate appeal which said in part as follows:

This court is of the opinion that this order involves a controlling question of law as to which there is a substantial ground for difference  of opinion and that immediate appeal from this order may materially advance the ultimate termination of this matter.

The issue has arisen due in large part to the recent US Supreme Court’s opinion in the case of United States v. Windsor, in which the Court decided that the definition of marriage, per the Defense Of Marriage Act, as a relationship between one man and one woman was unconstitutional.

Obviously, there are many issues to be decided as a result of the Windsor case, and the Wolf  case raises just one of them. However, it appears that the Pennsylvania Superior Court will be asked to address the issue for the first time in Pennsylvania. 

The spouse who earns frequent flyer miles or loyalty points may feel emotionally attached to those miles or points since they are perceived as a reward or a prize for the travel and endless nights away from home.  If earned during the marriage; from the date of marriage to the date of separation; they are marital property and can be subject to equitable distribution.  Assigning a fair market cash value to the miles and points could be extremely difficult since the “value” can vary depending on where and when the travel or use will occur. Some providers will divide them into separate accounts under each spouse’s name, but it could be costly. 

Many times parents that are separated have different parenting styles. There may be different views of everything from what snacks the children should eat, to bedtime, chores, discipline and homework. The challenges couples face as they adjust to their new “normal” and try to rebuild their lives are compounded when they are raising children together. As parents, these couples must still maintain a relationship. Maintaining a civil and cordial relationship in the mist of anger and bitterness is necessary for the upbringing of the children.

Communication is required to adequately co-parent. If face-to-face conversations are too difficult, parents may communicate by email to discuss medical needs, schooling issues, sports activities and other matters. When an emergency arises or there is an unexpected incident, conflicting parents need to work together to obtain a positive result for their children. 

When going through a divorce you may wonder what property and possessions will ultimately belong to you or your spouse.   All marital property will eventually be divided between Husband and Wife.   Marital property generally includes all property acquired by either Husband or Wife during the marriage. It may also include any increase in value of any non-marital property.  Non-marital property is property you owned or acquired before your date of marriage.  The division of all marital property may be done by a written agreement between Husband and Wife, or accomplished by going to Court. 

Rupert Murdoch the wealthy high-profile media mogul is finding out not everything can be contracted. Mr. Murdoch recently filed for divorce against his third wife of 14 years. The couple secured most assets through one prenuptial agreement and two postnuptial agreements, but they still may have lengthy legal battles in their future.

In states like Pennsylvania, a Prenuptial Agreement can resolve many issues including who will be responsible for debt, how business interests will be divided, and terms of alimony. However, child custody is not permitted to be agreed upon in a Prenuptial Agreement, and child support is for the care of the child, not the spouse.

Although Prenuptial Agreements may take care of many concerns, if there are children involved, your legal future may be unknown.

In an effort to facilitate the collection of past child support, the Collection of Overdue Support from Monetary Awards was created in 2006 as an amendment to the Domestic Relations Code with unanimous support in both the Pennsylvania State House and Pennsylvania State Senate. Codified as 23 Pa. C.S.A. §4308.1, overdue child support is a lien by operation of law against the net proceeds of any monetary award exceeding $5,000.00.  All monetary awards, which is broadly defined as any claim for bodily injury or death, in excess of $5,000.00 are subject to this law. 
 
The statute requires that all recipients of monetary awards must provide to his or her attorney a sworn statement including full name, mailing address, date of birth and social security number with documentation of the overdue support.  Attorneys who have clients with overdue support can obtain documentation of the overdue support online here.  Moreover, the statute requires the overdue support to be paid to the Pennsylvania State Collection and Disbursement Unit once the amount is verified. As a practical matter, it is important for attorneys to obtain this information at the initial intake.  If you have a client with overdue child support, an attorney should contact the client’s domestic relations attorney and take steps to verify the amount. This should all be done in advance of the settlement. 
 
Joe Cullen is a Shareholder in Stark & Stark’s Yardley, PA office, specializing in Accident & Personal Injury Law. For more information, please contact Mr. Cullen.

The answer: absolutely!

A recent Bucks County custody battle involved a father who created a website which, among other things, related his experiences with the Bucks County court system. Included on the website were blogs which referenced his ex-wife. These references were described by the judge hearing his custody case as “denigrating and belittling comments about mother”. The judge further advised father “You may say anything that you would like to say. You may publish it. You may put it on a billboard. But you will not have your children, because that is abusive”. Purportedly, the judge then ordered the website shut down and ordered father to stop blogging. The father has filed an appeal claiming the judge’s order violates his constitutional rights to free speech.

Whether or not the judge’s order violates father’s right to free speech is a separate issue from whether the judge can use the website information and blogs as evidence in the custody case. 

Pennsylvania has recently detailed the factors a judge must consider in awarding custody. The relevant factors in this case include:

  • The level of conflict between the parties and the willingness and ability of the parties to cooperate together.
  • The attempts of a parent to turn the child against the other parent
  • Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
  • The present and past abuse committed by a party or member of the party’s household.       

Additionally, research is conclusive across the board and child custody experts are unanimous: the more animosity displayed between parents, the greater the negative impact on the children.
   
While the father can proudly, and in all likelihood legally, stand up and champion his First Amendment rights – he does it with a price. While he may win in his appeal, he will lose in  custody and, most importantly, in his relationship with his children.
   
The internet and various forms of social media are playing larger and more significant roles in custody disputes. It’s important for a parent who contemplates custody litigation to consult with an attorney experienced in these issues so they can put themselves in the best possible position to obtain a favorable outcome.

Alimony reform appears to be gaining momentum across the country.  Last month New York State modified their alimony laws by adopting a formula for setting alimony thus making alimony fairer and easier to predict.  Massachusetts is currently considering a bill that would cap the duration of alimony based upon the length of marriage.

Are these reforms a good idea?  Certainly the use of a formula to determine alimony will take much of the guess work away from parties and their lawyers which should, in turn, lead to more cases settling rather than being tried before a judge.  Additionally, the formula should put an end to extreme alimony awards and make the awards much more consistent in each case.

What happens in a Bucks County or Montgomery County Divorce?
Pennsylvania follows a similar “formula” type approach as New York State just adopted.  But Pennsylvania only applies this to “temporary alimony” (also known as alimony pendent lite) which is in effect until the Divorce is finalized.  To determine an alimony award (or support after the marriage is over) Pennsylvania, and the majority of other states, use various factors such as: length of marriage; respective income of each party; assets distributed to each party; ages and health; marital misconduct; etc.  The use of these factors, and which factors are more heavily weighed, varies dramatically from Court to Court and Judge to Judge.  As a result alimony awards are highly unpredictable.

Changing alimony awards from a gamble to something more predictable should make the divorce process much fairer and reduce litigation.

If you are considering a divorce or even just separation, it is important to consult with an attorney to discuss how much, if any, support you can expect to receive and for how long.