As we all are aware, Jon & Kate have a custody arrangement wherein Jon spends a week with the children at the Wernersville home and then Kate spend a week with the children.  The agreement provides that each parent will have exclusive possession of the home - in other words the other party is not permitted to be there or interfere with that parent’s custody time.

Apparently Kate did not abide by the agreement.  Last Thursday night she returned, unannounced, to the parties home during Jon’s week with the kids. Jon would not let her in.  Kate called the cops.  The cops arrived and told Kate to leave.  Kate complied.  The end.

For now.

So why did Kate show up at the house in the first place?  Allegedly Kate was upset over Jon’s babysitter - 23-year-old cocktail waitress Stephanie Santoro.  It has previously been reported that Ms. Santoro often spends the night at the house for reasons other than watching the children. 

Jealousy, no mater how understandable it may be, is no reason for Kate to get the police involved.  However, giving Kate the benefit of the doubt,  it is possible she believed her children were not being cared for appropriately by Ms. Santoro.

Regardless of the reason, unless the kids were in physical danger or there was an emergency situation, Kate was out of line.  Kate must respect Jon’s “exclusive” time with the children and stay away.  Furthermore, calling the police for a routine custody dispute (although I imagine it escalated into Kate and Ms. Santoro exchanging choice words with one another) is never a smart decision. 

But it happens all the time.

Parents routinely call the police when they believe the other parent is violating a custody order/agreement.  If the order is clear as to which parent has custody of the children at that moment, then the police may assist in transferring the kids to that parent.  Absent that, the police are generally powerless to do anything (except as previously noted) and, as in the Gosselin’s case, usually just inform the parties their dispute is a “civil matter” and they need to deal with it in family court.  Further, judges do not look kindly on a party who involves the police for simple custody matters.  Most judges are quick to berate a parent in open court for using the police in that manner.  I’ve heard the courtroom lecture from Judge’s countless times: “Don’t you think the police have more important things to do then deal with your personal problems?!”  (Always directed at my adversary’s client of course).

If you read my previous blogs, you know the Gosselins have not filed for custody (see Jon minus Kate: What about the 8?).  If Kate is going to make an issue regarding Ms. Santoro’s continued care over the children or presence at the house then Jon & Kate may be headed to Berks County for a very public custody battle. 

Perhaps Jon & Kate could learn a thing or two from Madonna - a private, comprehensive, collaborative resolution seems ideal for their situation.

The high profile of Jon and Kate provides the public with a unique opportunity to explore issues that arise in contested divorce cases. Through this ongoing series I will offer comments and analysis of the proceedings and provide insight on how developments in Jon and Kate's case may occur in other divorces.  I am a Pennsylvania divorce attorney who is not involved in the Jon and Kate matter and the comments I present in this blog series are not case specific but rather intended to provide the public with helpful information on Pennsylvania divorce law.

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And, of course, Jon sees no problem parading around the French Riviera with his new girl.  Regarding this past weekend’s romp, he states:  “I know that my decision to appear publicly with [insert “Muffy”, “Bambi”, “Barbi” etc...] this weekend will be scrutinized, but I hope that people can see I’m a regular guy who is going through a very difficult time in [my] life and wants to move forward.”

Most of us all probably agree (as much as we may despise Kate) Jon’s actions are immature, inappropriate and just plain stupid.  But our social and moral opinions  have no effect on the case.  It is the Judge’s opinion that matters.  So, from a legal perspective, how will Jon’s actions affect his divorce?

Probably not at all.

Unless Jon is paying for his trip to the Riviera from a marital bank account, Jon’s post separation “flings” will have no bearing on the divorce or the distribution of the parties’ assets.

His actions could, however, have some significance in a custody dispute.         

Under Pennsylvania law, when a custodial parent is living in a meretricious relationship (not sure Jon is at that point yet), or when a third party may exert a substantial influence over a child, the law requires the court to view the third party and subject them to cross-examination as to their supervision, values, and relationship with the children and all other quasi-parental actions they may undertake.  John’s girlfriend, should she be involved in the rearing of the children, will be subject to close scrutiny from both a child custody expert as well as the judge.  Her judgment, maturity, emotional stability (and college indiscretions) will be questioned and exposed.  If Jon insists on her being part of his new life, and the court determines she is not a good influence on the children, then Jon may see a reduction in his custody time with the children or restrictions limiting his friend’s involvement.

Although there is no indication that the parties will fight over custody, in fact it appears as though they may have already reached an agreement as to custody, Jon’s introduction of this third party to the family could upend any agreement that was in place and ignite a very public custody dispute.  Bear in mind the Montgomery County Court does not have jurisdiction in custody; Jon & Kate would have to file in Berks County where the children reside and where the public has access to all court documents.

Next week’s headline: Kate caught in Motel 6 with Jon’s pilates instructor...

The high profile of Jon and Kate provides the public with a unique opportunity to explore issues that arise in contested divorce cases. Through this ongoing series I will offer comments and analysis of the proceedings and provide insight on how developments in Jon and Kate's case may occur in other divorces.  I am a Pennsylvania divorce attorney who is not involved in the Jon and Kate matter and the comments I present in this blog series are not case specific but rather intended to provide the public with helpful information on Pennsylvania divorce law.

Follow me on Twitter @jdvisco.

So far, we know: 

• Jon & Kate agreed to file in Montgomery County (as opposed to Berks County where they live) to maintain confidentiality and have their records sealed;
• Kate filed the divorce complaint;
• Kate is only requesting a divorce based on No-Fault Grounds (and thus taking Jon’s alleged adultery out of the discussion);
• Kate is requesting the court to divide the parties' marital property if they cannot reach an agreement;
• Kate is requesting the court approve a settlement agreement between the parties (if they are able to reach one) regarding the division of marital property;
• Kate is not asking the court to decide custody of the children;
• Kate is not asking the court to award her spousal support;
• Kate is not asking the court to order Jon pay any child support;
• Jon’s attorney accepted service (on June 22nd, 2009) and did not raise any additional claims regarding custody or support of the children.

So far, what we can infer:

• Jon & Kate have worked out a custody arrangement (the kids live in the house; Jon has one week, Mom has one week?);
• Jon & Kate have reached an agreement on how to pay for any expenses they have for the children; Jon & Kate make enough money that neither needs any support from the other;

What remains:
Jon and Kate’s attorney are now in the process of accounting for the “marital estate” - the property that the parties acquired during marriage and which will now be divided between them.  They are gathering account statements, getting appraisals done on various properties, determining what property (if any) is not marital, determining what marital debt there may be, and generating a comprehensive accounting which the parties will then use to determine how to split it all up.  If the parties cannot agree regarding the value of certain property, or whether certain property is marital or non-marital, then the court will ultimately make those decisions.  I suspect any such disagreement may be decided via confidential mediation or binding arbitration and thus avoid any possible disclosure or leaks to the public.
   
The high profile of Jon and Kate provides the public with a unique opportunity to explore issues that arise in contested divorce cases. Through this ongoing series I will offer comments and analysis of the proceedings and provide insight on how developments in Jon and Kate's case may occur in other divorces.  I am a Pennsylvania divorce attorney who is not involved in the Jon and Kate matter and the comments I present in this blog series are not case specific but rather intended to provide the public with helpful information on Pennsylvania divorce law.

Follow me on Twitter @jdvisco.

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.

In further defining “separate and apart” Courts have given additional guidance by requiring one of the parties to manifest the independent intent to dissolve the marital union and clearly manifest and communicate same to the other spouse.  Additionally, the notion of separate and apart is not defeated by isolated attempts at reconciliation or even sexual intercourse between the parties.  The gravamen of “separate and apart” is the existence of separate lives, not separate roofs.  It is when the parties stopped living as a married couple.  Determining the date of final separation requires a fact specific inquiry.  Considerable emphasis is placed on how the parties held themselves out to the public: did they go to social events as husband and wife?  Did they take family vacations together?  Did they change their financial arrangements from joint accounts to individual accounts?  Did they cancel joint credit cards?  Did they stop filing joint tax returns? Did the stop wearing their wedding bands?

Most of this information will never be revealed to the public.  But suffice to say the fact they continued to hold themselves out as a married couple to the public through their television program certainly supports the finding that Jon & Kate only recently began living “separate and apart”.
   
The high profile of Jon and Kate provides the public with a unique opportunity to explore issues that arise in contested divorce cases. Through this ongoing series I will offer comments and analysis of the proceedings and provide insight on how developments in Jon and Kate's case may occur in other divorces.  I am a Pennsylvania divorce attorney who is not involved in the Jon and Kate matter and the comments I present in this blog series are not case specific but rather intended to provide the public with helpful information on Pennsylvania divorce law.

Follow me on Twitter @jdvisco.

Follow me on Twitter @jdvisco.

1. consent by both parties that the marriage is irretrievably broken; and
2. the parties living separate and apart for two years and an acknowledgment by one of the parties that the marriage is irretrievably broken.

In Pennsylvania, it is common practice for the party filing for divorce to allege both of the no-fault grounds for divorce in the complaint.  This is done so that if the other party refuses to give their consent (option #1 above) the filing party (Kate) can still proceed under option #2 once they establish the 2 years of separation.  Option #2 can be established despite the other party’s refusal to consent.

Absent one of the two no-fault grounds being established above, Kate (as the plaintiff) would have to proceed on a fault based ground (such as indignities or adultery) in order to get a divorce.
Obviously proceeding on a fault based ground, while wonderful for tabloids, would only further divide the parties, increase hostility, prolong the divorce and ultimately subject the children to unnecessary animosity.

This case clearly seems to be heading down the path for option #1: both parties will ultimately consent that the marriage is irretrievably broken.

The high profile of Jon and Kate provides the public with a unique opportunity to explore issues that arise in contested divorce cases. Through this ongoing series I will offer comments and analysis of the proceedings and provide insight on how developments in Jon and Kate's case may occur in other divorces.  I am a Pennsylvania divorce attorney who is not involved in the Jon and Kate matter and the comments I present in this blog series are not case specific but rather intended to provide the public with helpful information on Pennsylvania divorce law.

Follow me on Twitter @jdvisco.

1. where the defendant resides;
2. if the defendant resides outside of this Commonwealth, where the plaintiff resides;
3. of matrimonial domicile, if the plaintiff has continuously resided in the county;
4. prior to six months after the date of final separation and with agreement of the defendant, where the plaintiff resides or, if neither party continues to reside in the county of matrimonial domicile, where either party resides; or
5. after six months after the date of final separation, where either party resides. 

When you apply each of the above enumerated provision to the case we find: 

1.  the defendant (Jon) resides in Berks County;
2.  not applicable - Jon resides in the Commonwealth of Pennsylvania;
3.  matrimonial domicile - Berks County;
4.  where the plaintiff or either party resides - Berks County;
5.  where either party resides - Berks County.

Based upon the information known to the public, this divorce belongs in Berks County.
 
However, Rule 1920.2 of the Pennsylvania Rules of Civil Procedure also addresses venue in a divorce action.
 
Rule 1920.2 provides:
 
(a) The action, except for a claim for custody, may be brought only in the county
     (1) in which the plaintiff or the defendant resides, or
     (2) upon which the parties have agreed
          (i) in a writing which shall be attached to the complaint, or
         (ii) by participating in the proceeding.
(c) Notwithstanding any agreement of the parties, if neither the plaintiff nor the defendant has resided in the county at any time during the pendency of the action, the court, upon its own motion and for its own convenience, may transfer the action to the appropriate court of any other county where the action originally could have been brought.
 
So can they legally file in Montgomery County?
 
Yes. Legally they can be in Montgomery County if either one of the parties has established a residence in Montgomery County or the parties have already agreed in writing to Montgomery County.
 
My guess is the parties already have a written agreement to have the case heard in Montgomery County.
 
Why would they want to file in Montgomery County?
 
Privacy.  Go figure.  Berks County’s policy is to allow the public to access all legal pleadings filed with the court.  Montgomery County drastically limits public access to the records and, generally, only will release pleadings, orders and related documents to the parties or their attorneys.
 
Interestingly, by Rule, custody cannot be decided in Montgomery County.  Unless Jon and Kate agree on custody they will have to go back to Berks.
 
It is hard to believe that TLC does not have their hands in this matter.  By filing in Montgomery County they (or the parties) maintain greater control of the release of information.   Surely the creative producers at TLC will find a way to exploit this information black-out to boost the show’s ratings.
 
The high profile of Jon and Kate provides the public with a unique opportunity to explore issues that arise in contested divorce cases. Through this ongoing series I will offer comments and analysis of the proceedings and provide insight on how developments in Jon and Kate's case may occur in other divorces.  I am a Pennsylvania divorce attorney who is not involved in the Jon and Kate matter and the comments I present in this blog series are not case specific but rather intended to provide the public with helpful information on Pennsylvania divorce law.

Follow me on Twitter @jdvisco.

The high profile of Jon and Kate provides the public with a unique opportunity to explore issues that arise in contested divorce cases. Through this ongoing series I will offer comments and analysis of the proceedings and provide insight on how developments in Jon and Kate's case may occur in other divorces.  I am a Pennsylvania divorce attorney who is not involved in the Jon and Kate matter and the comments I present in this blog series are not case specific but rather intended to provide the public with helpful information on Pennsylvania divorce law.

Follow me on Twitter @jdvisco.