PA: Family Law

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benlaw
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26405
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PA: Family Law
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2010-07-22 12:04:37
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  1. Preceding Marriage: Antenuptial Agreements
    • GEN: Establish econ rights in the event the marriage is unsuccessful.
    • REQ: To be valid, must show
    • (1) K in writing (SoF);
    • (2) Parties actually married; AND
    • (3) Spouses made full disclosure of assets.
    • NOTE: A problem with any of these can result in an invalidation.
    • ALSO: Duress (actual, phys threats) or unconscionability (more than fairness challenger) can invalidate.

    KIDS: Agreements re: kids are always subject to modification.
  2. Marriage
    • REQS: Celebrant, witness, exchange of promises (vows).
    • LICENSE: Prereq to ceremonial marriages.
    • AGE: Under 16 -- court and parental approval. Under 18 -- parental approval.

    • CL MARRIAGE: Nothing after 2005.
    • >> Pre-2005: Must have been able to apply for a license, and in lieu of the ceremony, exchange of promises -- in present tense.
    • >>>> Where trouble showing verbal promise: cohabitation and reputation (holding out) create a rebuttable presumption of marriage.
  3. Terminating Marriage (Annulments)
    • Annulment: Looks backwards to a date predating the marriage. Acts to dissolve it.
    • >> KEY: Look for a capacity problem.

    • VOID: Insanity (or severe mental disorder), bigamy, incest.
    • >> If void relationship, not maried. Don't need an annulment, but provides clarity of record.
    • >>>> BUT: Judge may STILL need to decide a collateral issue, such as kids or property.
    • >> Can be attacked by third parties with standing (think inheritance issue).
    • >> WAIVER: Impediment making a marriage void NEVER waived.

    • VOIDABLE: Too young, intox. at ceremony, duress (phys force), fraud.
    • >> If voidable, married until you get an annulment.
    • >> Can only be attacked by one of the parties.
    • >> WAIVER: Impediment making a marriage voidable can be waived IF stay in marriage after impediment removed.
    • >> FRAUD: Misrepresentation or concealment of info that does to an essential aspect of the marriage:
    • >>>> (1) Lies/secrets re: religion (relig, observation, kids religion)
    • >>>> (2) Lies about procreation/sex (incapable of having kids, carry illness likely to cause a birth defect, lie about paternity, lie about sex (former prostitute)).
    • >>>> (3) Incurable impotenct (when license issued) -- only sex, NOT procreation. Permanent and irrevocable.
    • >>>> NOTE: Lying about money, wealth, social standing, ect. = INSUFF.
  4. Terminating Marriage (Divorce - Fault)
    Divorce: Problem arisen subsequently -- after the marriage.

    • STANDING: One party must be domiciled in PA and have six months' residence in PA before filing for divorce.
    • >> NOTE: In order to get collateral remedies (money, property, kids, alimony), need personal jdx in the court sued.

    • CONSEQUENCE: Spouse NOT entitled to alimony support if s/he is guilty of conduct that would constitute a ground for divorce.
    • BUT: Alimony pendente lite ISN'T affected by marital misconduct.

    • GROUNDS (FAULT-DIVORCES):
    • (1) Desertion: willful and malicious absence from the marital home w/o reasonable cause for at least one continuous year.
    • >> Excape from home to avoid violence is a reasonable cause.
    • (2) Adultery: Voluntary sex with someon other than a spouse.
    • >> Circumstantial evidence: opportunity and inclination (gifts, love letters, ect.)
    • (3) Cruel and Barbarous Treatment: compromise life/health. Single episode sufficient if serious.
    • (4) Bigamy: Second in time can annual, first in time can divorce.
    • (5) Imprisonment: two or more yrs imprisonment.
    • (6) Indignities: Mental cruelty -- continued course of conduct resulting in a burdensome and intolerable life.
    • >> Includes cruel/aloof behavior as well as an unwillingness to engage in sex.
    • (7) Insanity: Mentally ill spouse institutionalized for at least 18 months.
    • >> Also need: medical testimony that there's no likelihood or cure for next 18 months.

    KEY: Look for stipulation re: fault.
  5. Terminating Marriage (Divorce - Affirmative Defenses)
    • DEFENSES
    • (1) Condonation: Tolerance. Essentially waiver. Three requirements --
    • >> Knowledge of misconduct;
    • >> Forgiveness; AND
    • >> Resumption of marital relationship.
    • >> NOTE: Not a defense to a continuous course of conduct. Must cease behavior and resume obligations.
    • (2) Connivance: tricking one's spouse into the subject of a divorce complaint.
    • (3) Collusion: Agreement by parties to manufacture grounds for divorce.
    • (4) Recrimination (RARE!): guilty party ≠ get relief from a court.
    • >> Usually conduct of the same type.
    • (5) Provocation: Expanded S-D provoked by spouse.
    • (6) Insanity: Reason for desertion/cruelty = mental illness.
  6. Terminating Marriage (Divorce - No Fault)
    • GEN: No fault DOESN'T MEAN no grounds for divorce.
    • >> Parties must prove a ground, BUT WITHOUT pointing a finger.
    • >> GROUND: Irretrievable breakdown of the marriage.

    • BILATERAL: If both parties agree.
    • >> Both parties must acknowledge by affidavit, wait 90 days, then dissolve marriage.

    • UNILATERAL: One spouse, complete cesation of cohabitation (no sex) for two full years.
    • >> KEY: Can't have sex with spouse -- OR ANYONE ELSE!
    • >> RESULT: Court infers an irretrievable breakdown of the marriage.
  7. Terminating Marriage (Advice in Fault - No Fault Situation)
    KEY: In advising a client regarding a fault-divorce situation, should also explain the option of a no-fault divorce. Latter is faster, less costly, less burdensome on the family.
  8. Terminating Marriage (Missing Spouse)
    GEN: If spouse missing 7 years or more, presumed dead. If you want to marry earlier, must get a certificate of presumed death.
  9. Separation Agreement
    • GEN: Mutual agreement in no-fault divorce case.
    • >> Oversight by the court to make sure there is no overreaching by one party.

    • MODIFICATIONS: Terms are NOT modifiable unless the agreement provides otherwise.
    • >> EXCEPTION:
    • >>>> (1) Agmt re: KIDS -- always modifiable.
    • >>>> (2) Concealment, fraud, duress or lying can give rise to court modifications.
  10. Division of Property
    • GEN: PA is an equitable division state with a two-step process.
    • NOTE: In division, CANNOT consider marital misconduct.

    • STEPS:
    • (1) Categorize assets into three piles:
    • >> Husband's assets
    • >> Wife's assets
    • >> Marital assets
    • (2) Divide Marital property equitably by partitioning or distributing.
    • >> Partition: Sell property and divide proceeds accordingly.
    • >> Distribute: Split assets on a certain percentage ratio and then divy out property.
    • In Both Cases, Consider:
    • >> Age and health of parties
    • >> Current income, education and employability
    • >> Deparate property assets
    • >> Custodian of minors (custodian might need house or SUV)
    • >> Tax ramifications
    • >>>> When dividing property, there are no immediate tax repercussions. The new owner takes a carryover basis.

    • INDIVIDUAL PROPERTY
    • Anything before marriage belongs to each of the individuals. Individual property also includes --
    • (a) Gifts/Inheritance received after marriage (by a non-spouse) to one party.
    • (b) Any property acquired after the date of formal separation in advance of the divorce.
    • (c) Any agreement to treat particular property as separate property.
    • (d) Federal disability benefits from military service are individual property.

    • MARITAL PROPERTY
    • Includes:
    • (1) Vested items, including intangible items of value.
    • (b) Items purchased by one party in the course of marriage, even if only in one spouse's name.
    • (c) Gambling/lottery winnings.
    • (d) Appreciation in value of separate property assets furing the course of marriage -- must be attributable to the marriage time period (includes stock appreciation).
    • (d) Gifts between spouses during the marriage.
  11. Alimony
    • GEN: Payments to one spouse during the course of (APL) and/or after the divorce.
    • NOTE: In deciding post-divorce alimony, court CAN consider marital misconduct.
    • >> BUT: Alimony can be awarded even if one side accuses the other of adultery. One factor to consider.
    • TYPES:
    • (1) Temporary: while lawsuit is pending (pendente lite) -- terminates when case ends.
    • >> Designed to make sure a spouse can support him or herself during the pendency of the case.
    • >> Cohabitation by recipient spouse DOESN'T terminate APL.
    • (2) Permanent: post-adjudication award to ex-spouse at specific intervals (can last a set period, or be indefinite).

    NOTE: Judge has discretion over the amount of the award, taking into consideration a variety of factors.


    • MODIFICATION: Payor becomes diabled, promoted, or wins lottery -- modification permitted.
    • >> Modification has a prospective effect only. Back-due alimony (arears) cannot be changed.
    • TERMINATION: Death of either party, remarriage of recipient, or recipient engages in cohabitation.
    • >> Cohabitation: includes financial, social and sexual interdependence, in addition to sharing same resid.

    ENFORCEMENT: Cease and sell assets, attach wages, suspend license, hold in contempt of court (jail).

    • TAXES: Deductible by payor, income to recipient.
    • >> Note: no tax deductions in division of property.
  12. Children (Child Support)
    • STEPS:
    • (1) Identify parents (to determine who owes child support):
    • >> If woman is married: the presumption is that he's the father of the children.
    • >>>> If living together as H+W, nearly irrebuttable (need clear and convincing evidence)
    • >>>>>> Poss evidence; complete lack of sexual access OR physical impossibility.
    • >>>>>> AND: even if rebutted, there's Paternity by Estoppel: if accept role of father, hold child out at son, can't evade paternity.
    • >> If woman unmarried: paternity suit.
    • >> Court can order a blood test or a party can request one through the court.
    • >> Once adjudicated, final. Res judicata.

    • (2) Child Support:
    • >> Each parent much provide for the child up to age 18 or emancipation (completes high school, married, ect.).
    • >>>> May extend beyond 18 IF: child has a phys/mental disability, existing when he reaches 18, that prevents him from being self-supporting. Also may endure if kid has a drug addiction such that he's not able ro secure employment and is dependent on his parents.
    • >> If non-custody parent, only need to provide if there is a court order requiring provision.
    • >>>> KEY: Parties are not living together. If live together, obligation satisfied with rents checks, groceries, ect.
    • >> ALGORITHM: Discretion of the court, but it has to set out its rationale on the record.
    • >> HEALTH CARE: Court order must also include a prevision re: health care for the child if it is not an unreasonable burden on the non-custodial parent (less than 5% monthly income).
    • >> DURATION: Continues until the child reaches the age of maturity (18).

    MODIFICATION: If payor gets hurt, suffers an injury, the amount of the child support can be reduced. However, if payor has good fortune, ie. wins the lottery, can be raised.

    TERMINATION: Automatically terminations on the death of the parent or child.

    • IF PARENT MOVES OUT OF STATE: The uniform support statute provides for the direct enforcement of court orders across state lines -- an order from one state can be mailed to an employer in another state and wages, as a result, can be garnished. The court that issued the original order maintains exclusive jdx SO LONG AS one parent remains in that state -- continuous and exclusive jdx prevents inconsistent orders.
    • >> Key: Either send to his employer in another state, or to a court.
    • >> Can also file a claim and intercept tax refunds. And if a parent wins the lottery, can claim a percentage.

    TAX: Child support payments NEITHER deductible as alimony NOR includible as income to the custodial parent.
  13. Children (Custody)
    • GEN: Two custody types --
    • (1) Legal Custody: Which parent makes legal decisions affecting the best interests of a minor child.
    • (2) Physical Custody: Actual physical possession and control.
    • >> Court may award shared legal custody, shared physical custody or both to assure that a child will have frequent and continuing contact and physical access to both parents.

    • EFFECT: When custody order is issued, valid under the child reaches the age of majority (18).
    • MODIF: Can modify as a result of changed circumstances, but must show (1) a changed circumstance affecting the best interest of the child.
    • >> NOTE: If change filed when one parent is away on duty (military), then the court can only make a temp change.
    • STANDARD: Best interests of the child.
    • >> Interests and wishes of the parties, and if the child is over 12, the child's interest.
    • >> Physical and mental conditions of the parents (emotional circumstances, abuse?)
    • >> Whether a parent is living w/ another person
    • >> Domestic violence?
    • >> No child should be given to a parent conficted of killing the other.

    • JOINT CUSTODY: Parents get along with each other? Live near each other?
    • EXCLUSIVE CUSTODY: Visitation almost always permitted.
    • >> Contempt of court to deny or interfere with visitation.

    • JDX: HOME STATE RULE (GEN) -- home state of the child in the present or recent past (6 months) where a parent continues to live in that state. Child must have lived in the state for at least six consecutive months immediately before commencement of the proceedings.
    • >> If no hom state, can use courts in the state where a parent has a signif. connection and there's sub evidence re: child in that state.
    • >> Note: state has temporary emergency jdx in situations of abuse/abandonment.
  14. Children (Custody Disputes B/wn Parents and Non-Parents)
    STANDARD: Best interests of the child.

    • GEN: If non-parent wants custody, first must show standing --
    • (1) Statute proving standing; OR
    • >> GPARENTS: One parent of the child is deceased, the parents have commenced divorce proceeding or been separated for 6 months, or the child lived w/ them for a year or longer.
    • >> NOTE: Parents interest should be given special weight.
    • (2) With no statute, show in LOCO PARENTIS -- acted as a parent with consent of a biological parent.
    • >> Note: good for same sex couples -- provides standing for non-bio partners.

    • PRESUMPTION: Live with the biological parent.
    • >> Even if a kid moved from good circumstances, courts are inclined to side with biological parents.
  15. Children (Non-Parent Visitation)
    • GEN: Standing requires standing grant through a statute or a showing of in LOCO PARENTIS.
    • KEY: Must show stong need to visit child -- trumping due process right by requiring state to encroach on parents' rights.
    • NOTE: If all non-parents show is a desire to visit, they fail.

    NOTE: Uphill battle.
  16. Gen Spousal Support
    NOTE: Spousal support may be awarded to a spouse at any time during the course of the marriage, even when no divorce proceedings have been or will be initiated.

    BUT: NO support if guilty of conduct that would be grounds for divorce.
  17. Adoption (and Termination of Bio Parents' Rights)
    • BIO PARENTS CONSENT (AND VETO POWER)
    • CHILD LESS THAN 12: Biological parents' consent needed if child is less than 12.
    • CHILD OLDER THAN 12: need child's consent AND bio parents.
    • CHILD INCAPACITATED: Need consent of guardian if not parents.
    • WHERE ADOPTER MARRIED: If married and wish to adopt, need the consent of your spouse.
    • WHERE OTHERS HAVE CUSTODY: Need consent of current custodian as well as bio parents.

    • WHERE SIGNS OF ABANDONMENT/NEGLECT:
    • GEN: Adopting party may seek to terminate bio parents' rights without consent if
    • (1) Abandonment: not performing parent responsibilities for at least six months.
    • (2) Abuse
    • (3) Neglect: failure to provide food, clothing ,ect.

    NEXT STEP: Following consent or demand if not needed, investigate prospective adopters.

    HEARING: Best interests of the child. If adopted, same relationship as biological parents.

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