Ok, so Arnold fathers a child with his maid, Mildred Baena.  Arnold is married and, at the time, Baena was married.  The child is now around 14 years old and Baena is now divorced.

So who pays child support?  Arnold or Baena’s ex husband?
If this happened in Bucks County, or any where in Pennsylvania, it could be Baena’s ex-husband and not Arnold.
               
How can that be?
The courts in Bucks County and throughout Pennsylvania, as in most states (California being one) have a “presumption of paternity.” This presumption, according to the Pennsylvania Supreme Court, is “one of the strongest presumptions known to the law.”  The presumption is that a child conceived or born during the marriage is a child of that marriage.  So regardless of who may have been the biological father, it will presumed that Baena’s husband, who was married to Baena when the child was conceived and born, is the legal father of the child.  As such Arnold would have no right or obligation to the child.

So is Arnold, who is estimated to be worth $800 Million dollars, off the hook for child support? 
Not necessarily.  Under Pennsylvania law the presumption can be rebutted if, at the time of litigation for paternity, the marriage between the husband and wife is no longer intact.  If this case was in Bucks County, Montgomery County or any where in Pennsylvania, now that Baena is divorced, paternity can be addressed.

Why does Baena’s marital status matter?
The public policy in Pennsylvania behind the presumption of paternity is the preservation of families, which should not be destroyed by a dispute over the parentage of a child conceived or born during marriage.  A third party should not be allowed to attack the integrity of a functioning marital unit, based on public policy that children should be secure in knowing who their parents are.  If a person has acted as a father and bonded with the child, the child should not be required to suffer the potentially damaging emotional trauma that may come from being told his father, who he has known all his life, is not in fact his father.

I’ve previously blogged about how various social mediums, Facebook in particular, can dramatically affect your marriage and your divorce. As I advise all my clients, we live in a very public world these days, the internet has opened windows into peoples’ lives; privacy is scarce. What you post online while alone at your computer is a message for the entire world to read.

A wife in New York was recently reminded of this. The wife was seeking permanent alimony from her husband due a disability which prevented her from working. Her claim was quickly rejected when her husband was able to introduce evidence of her being paid to belly dance. How did the husband find out? The wife was blogging about it on the internet. Even worse, when asked by a friend on Facebook why she wasn’t posting pictures of herself dancing, the wife replied, “Gotta be careful what goes online, pookies. The ex would love to fry me with that.” 

And fried she was. The Court substantially slashed her alimony award, both in amount and duration, and awarded husband legal fees for wife’s tactics.

Lessons?
If you or someone you know is going through the divorce process, be sure to consult with an attorney experienced in the role social media plays in divorce cases. With the various number of social media outlets available to almost anyone these days, it’s crucial to your case that you have someone on your side who will ensure that your rights, interests and privacy is protected.

On January 24th of this year, child custody law in Pennsylvania changed.  Previously, child custody disputes where decided by a judge based upon the “best interests of the child” standard.  This broad standard gave litigants, counsel and judges broad discretion in deciding what facts and factors constituted “best interests.”  The new law helps focus the best interest inquiry and will aid in removing personal biases of judges, create more uniformity in decisions, and allow for better reasoned and more child-centric custody decisions.

Starting January 24th, the court must now “give weighted consideration” to the following 16 “best interest” factors:

  • 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 a party’s house-hold, whether there is a continued risk of harm to the child and which party can better provide adequate physical safeguards and supervision
  • The parental duties performed by each party on behalf of the child
  • The need for stability and continuity in the child’s education, family life and community life
  • The availability of extended family
  • The child’s sibling relationships
  • The well-reasoned preference of the child
  • The attempts of a parent to turn the child against the other parent
  • Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs
  • Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child
  • The proximity of the residences of the parties
  • Each party’s availability to care for the child or ability to make appropriate child-care arrangements
  • The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another.
  • The history of drug or alcohol abuse of a party or member of a party’s household
  • The mental and physical condition of a party or member of a party’s household
  • Any other relevant factor       

Additionally, under the new law Judges must provide the reasons and facts they relied upon in reaching their decision. These changes should provide greater predictability and uniformity in custody disputes throughout the state.

John* recently filed for divorce from his wife of 10 years.  They have 2 children together.  He originally came to me concerned that he and his wife had become both emotionally and physically distant from one another.   He complained his wife obsessed over her new Facebook account; constantly monitoring it through her mobile phone.  John feared the worst.  But every time he confronted his wife with his concerns, he was reassured that she was just talking to “old friends from school” or “co-workers.”

Turns out that John’s wife had reconnected through Facebook with an old high school boyfriend.  They had been having an affair for almost a year. 

And so John became the 1,011th  spouse to file for divorce in Bucks County this year.

Some sources estimate Facebook plays a role in one out of every five divorces.

While that number seems high to me, as a divorce attorney I will unequivocally say Facebook, along with the gambit of internet dating sites, is boosting my business. Internet social networking is increasingly becoming a conduit through which affairs and intimate contacts are sparked, kindled and fanned.

According to Lynne Lee, a local counselor and therapist: “Sites like Facebook are contributing to separations and divorce as bored 40 and 50-somethings try to reconnect with childhood sweethearts.”

“Relationships develop more quickly online as inhibitions are lowered, information is easily exchanged, and there’s an endless amount of people you can link up with who are there for the same reason.” Lee says.  “ Plus the real life pressures of a real relationship are absent…it tends to be a bit of a fantasy world.”

Everyone has some degree of fantasy about a love that might have been from the past.  The new technology helps you find and reconnect with these people.  It’s an easy escape from the “doldrums” of marriage when the sparks fade after years of raising children and the pressures of maintaining a home.

Lee, who counsels couples, encourages them to talk about how Facebook can hurt as well as help their relationship.  She offers the following boundaries for spouses on Facebook: 

  • Avoid “friending” exes
  • “Friend” each other and bring each other up from time to time on the site
  • Keep conversations with people of the opposite sex public on Facebook “walls”
  • Share user names and passwords with each other and encourage your spouse to login to your account so they can be assured there are no secrets
  • List yourself as “married” in your status (its kind of like a cyber wedding ring)
  • Never put down your spouse or bring up relationship problems on Facebook
  • When in doubt “defriend”  Lee emphasizes this one.  If you find yourself frequently looking at someone else’s profile or waiting for their next post – you need to walk away by “defriending” that person
  • Don’t spend more time online than with your spouse.  Escaping into a cyber fantasy world and pursuing an exciting encounter is a poor excuse to avoid confronting real life issues in a real relationship, especially if children are involved

Social networking is here to stay.  The sooner couples talk about it, the less harm it can do to a marriage.  Setting up boundaries to protect your marriage, both in life and online, doesn’t mean you’re an untrusting, insecure or jealous person.  It means you recognize that even people with the best of intentions can compromise themselves.

Spend some facetime with your spouse to make sure you are on the same page with Facebook.

*Names have been changed.  Used with permission of the client.

In Pennsylvania, including Bucks County, marital property is subject to “equitable distribution.”  Equitable distribution does not mean equal.  Also, despite common belief, there is no presumption of a 50% – 50% distribution.  The Court will consider the following factors in determining the distribution of the marital assets:

  1. The length of the marriage.
  2. Any prior marriage of either party.
  3. The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
  4. The contribution by one party to the education, training or increased earning power of the other party.
  5. The opportunity of each party for future acquisitions of capital assets and income.
  6. The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.
  7. The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.
  8. The value of the property set apart to each party.
  9. The standard of living of the parties established during the marriage.
  10. The economic circumstances of each party, including Federal, State and local tax ramifications, at the time the division of property is to become effective.
  11. Whether the party will be serving as the custodian of any dependent minor children.

Lastly, contrary to popular belief, fault is not a consideration in the division of the property.  Thus it does not matter why the marriage ended (i.e. one party had an affair or abandoned the home.)  Marital misconduct could, however, become relevant in equitable distribution if one spouse dissipated assets for the benefit of the third party (such as vacations, purchase of jewelry, ect.)   

Pennsylvania Law starts with the presumption that all real or personal property acquired by either party during the marriage is marital property regardless of how it is titled.   Marital property also includes the increase in value (during the course of the marriage) of any non-marital property.
The Court is thus more concerned with when the property was acquired rather than how the property is titled.

The presumption can be overcome if the property falls into one of the following statutory categories:

  1. Property acquired prior to the marriage or property acquired in exchange for property       acquired  prior to the marriage;
  2. Property excluded by valid agreement of the parties entered into before, during, or after the marriage;
  3. Property acquired by gift, except between spouses; bequest; devise; or descent, or       property acquired in exchange for such property;
  4. Property acquired after final separation until the date of divorce except for property                   acquired  in exchange for marital assets;
  5. Property which a party has sold, granted, conveyed, or otherwise disposed of in good faith and  for value prior to the date of final separation;
  6. Certain Veterans’ benefits;
  7. Property to the extent to which such property has been mortgaged or otherwise                       encumbered in good faith for value, prior to the date of final separation;
  8. Any payment received as a result of an award or settlement for any cause of action or     claim which accrued prior to the marriage or after the date of final separation regardless of when the payment was received.

 
Property which is not marital property is often referred to as “separate property” or “nonmarital property.” The court only has authority to equitably divide marital property at the time of equitable distribution.

In January of this year the Pennsylvania Supreme Court issued updates to the Pennsylvania Support Rules and Guidelines.  The guidelines are what our courts use to determine the amount of child support a parent must pay to the other parent or the amount of spousal support one spouse must pay to the other.  The guidelines are required to be updated every four years.  Usually there are only very minor changes.  This year, however, there are some significant changes which will have a profound effect on the calculation of child or spousal support in certain cases.

For residents of Bucks County, as well as the rest of the state of Pennsylvania, The most significant change is in the application of the support guidelines to cases where the net household income is in excess of $20,000 per month.  Currently the child support guidelines end when the combined net monthly income for the parties reaches $20,000.  Above $20,000 net per month the parties are considered “off guidelines” and a much more complicated analysis would be performed to determine child support.  The new guidelines now increase that threshold to $30,000 per month.  This increase should provide some much needed uniformity in calculating support for parties who fall into this high income category.  The new guidelines also chang the manner in which the court would determine a support obligation for parties with net income in excess of $30,000 per year.  The change should result in a much more consistent and uniform child support awards in high income cases throughout the state.

The Supreme Court has also added language in the new guidelines to allow the trial court to consider the duration of the marriage when determining the duration of spousal support or alimony pendente lite (APL).  This change was specifically implemented to prevent the unfairness that arises in a short-term marriage when the obligors are required to pay support over a substantially longer period of time than the parties were married and there is little or no opportunity for credit for these payments at the time of equitable distribution. 

An additional change to the child support guidelines is the court’s presumption that the non-custodial parent (the parent paying the support) is spending at least 30% of the time with the child(ren).  As such the non-custodial parent should also be making contributions for things such as food and entertainment.  These payments are built into the new schedule.  Under the new guidelines a deviation upward may be had where the non-custodial (paying) parent has substantial less than 30% time with the child.  Conversely, a deviation downward may be had if the non-custodial parent has substantially more than 30% time with the child. 

Lastly, under the current guidelines a spouse could be awarded an additional amount to assist in paying the mortgage on a marital residence.  This amount could be ordered to continue being paid even after the parties obtain a divorce.  The new guidelines now limit this “Mortgage Deviation Credit” and direct it cannot be applied after final resolution of the economic claims between the parties to a divorce. 

The new guidelines go into effect May 12, 2010.  Enactment of the new guidelines, in and of themselves, are not a grounds to change a current support order.  If, however, a substantial difference exists in a support award calculated under the old and the new guidelines it is possible a court would grant such a modification.  Parties who suspect their support award may be altered by the new guidelines should consult with a family law attorney to determine if it is worth their while to file for modification.

An Owner’s Manual For Your Divorce is a 10 part podcast series presented by Stark & Stark’s Divorce group. The series is intended to assist you in understanding the general process of a divorce from the initial discussions with your spouse to the post divorce follow-up.

The tenth and final installment will focus on moving on after your divorce. The video discusses the fact that the Judgment of Divorce in and of itself is not going to improve your life. The divorce simply changes your legal status from being married to being single. What you do as a result of the change of status is now up to you.You can download a copy of the installment notes here. (PDF)

You can download the tenth installment here. (1.4 MB)

An Owner’s Manual For Your Divorce is a 10 part podcast series presented by Stark & Stark’s Divorce group. The series is intended to assist you in understanding the general process of a divorce from the initial discussions with your spouse to the post divorce follow-up.

The ninth installment will focus on the follow-up after your divorce.  After you have entered into a Settlement Agreement or the Judge has made a decision, the terms of that Agreement or decision must be implemented. In this installment, we will will discuss issues pertaining to deeds and mortgages, how to change your name, life insurance policies, pension or retirement accounts, medical insurance and bank accounts.  You can download a copy of the installment notes here. (PDF)

You can download the ninth installment here. (1.7 MB)

An Owner’s Manual For Your Divorce is a 10 part podcast series presented by Stark & Stark’s Divorce group. The series is intended to assist you in understanding the general process of a divorce from the initial discussions with your spouse to the post divorce follow-up.

The eighth installment will focus on the trial portion of your divorce. If you and your spouse have been unable to settle your case between yourselves and none of the settlement alternatives described in Section VII have been successful, it may be necessary to prepare and submit your case for trial before the Judge. In this installment, we will give an overview of the trial proceedings. You can download a copy of the installment notes here. (PDF)

You can download the eighth installment here. (2.3 MB)