Can Your Divorce Records Be Sealed?

Your divorce and custody cases are extremely personal and private. However, many people are surprised to learn that many family law proceedings may be viewed by the public and not in actually confidential.  In fact, most county courthouses (except in the age of COVID) are open to the public.  That means that with some exceptions, many hearings can be viewed by the general public. 

Why is this? Generally, our government has recognized that the court and information about how it makes it decisions should be open to the public.  This public policy concern often outweighs the individual party’s desire to keep their case private. 

Various states and local jurisdictions have rules for types of information that must be kept confidential and how documents must be submitted that include private information. For example, Pennsylvania’s Public Access Policy provides that the following information must be kept confidential: name and dates of birth of children (unless they are the defendant in a juvenile criminal matter, Social Security numbers, and financial matters). There are additional pieces of information that a court can deem private so you must review the your county’s local rules, as well.

However, if you wish to seal the proceedings in your divorce case, you must petition to the court to do so, following the local rules of your jurisidiction.  Your request should be “narrowly tailored” and should outweigh the public policy of an “open” court.  The court can decide whether it is appropriate to seal certain documents in your case. At times the court may only redact particular private or proprietary information.  

You should speak with an attorney about your case about whether and how information in your case my be sealed or kept confidential.  

LINKS:

http://www.pacourts.us/assets/opinions/Supreme/out/477jad-attach1.pdf?cb=1

Is There a Statute of Limitations on Enforcing a Marital Settlement Agreement?

Photo Description: Man holding a phone in his left hand with a laptop sitting on a table in front of him both showing a trend report.

Is there a time limit on enforcing the terms in a marital settlement agreement? In a recent appeal, Melchiorre v. Melchiorre J.A17003-20, the Superior Court decided whether Wife was barred under several legal doctrines from enforcing the terms of the marital settlement agreement because she had waited nearly 17 years after its entry to file her contempt petition. Husband argued that under the statute of limitations and/or the doctrine of laches. Husband also argued in his appeal that the “Releases” terms in the agreement barred wife from bringing a petition for contempt. Finally, he challenged contempt was a proper remedy. Husband withdrew his fifth issue on appeal.

In this case, Husband and wife entered into a post-nuptial agreement on June 8, 2001, which was incorporated but not merged into the divorce decree of July 18, 2001.  Husband had non-vested stock options from his employer which totaled 1,269,317 shares, which were in his name only. Husband has non-vested stock options from his employer.  The agreement provided that upon vesting, Wife “shall be entitled to request that Husband sell one-half (1/2) of the shares exercisable at each time and Wife will be paid the net proceeds thereof after deduction of commissions and any applicable capital gains taxes to Husband.” The agreement further provided that within 15 days after demand, each of the parties would execute any and all written instruments necessary to effectuate their Agreement. 

Seventeen years later, Wife found her copy of the Agreement while going through her papers.  She realized that she never received her one-half share of the stock and she asked Husband about it.  He told her that it had been sold, but refused to give her any information about the proceeds.  Wife hired a lawyer who asked for the same. Husband failed to comply and Wife filed petition for contempt and enforcement.  

The trial court concluded that Wife’s claim was not barred by the statute of limitations, doctrine of laches, or waiver.  Based on the evidence presented, the court held Husband in civil contempt, imposed sanctions, and determined how he could purge himself of contempt by executing the necessary authorizations, providing documents, and remitting attorney fees of $5202. 18 to Wife within 30 days.  Husband filed reconsideration which was denied.  He filed a timely appeal.  He presented five issues.  Whether the trial court erred in denying Husband’s motion for judgment on pleading based on 1) statute of limitations, 2) doctrine of latches, 3) doctrine of waiver. And Then 4) whether the court abused its discretion by finding Husband in civil contempt for failing to acknowledge debt to Wife, and whether the court committed an error of law or abuse its discretion by conducting an evidentiary hearing and taking testimony from the parties on Husband’s motion for judgment on the pleadings. 

Statute of limitations and continuing contracts.

Generally the statute of limitations on a contract is four years.  However, the trial court found this was a continuing contract.  The test of whether a contract is continuing in nature as to take it outside of the statute of limitations is whether there was no definite time fixed for payment.  Husband contends that it was not a continuing contract because there was a definitive time fixed for payments, as well as requirement that Wife make a demand.  He argues that Wife had knowledge of the dates that the stock vested, which were on three separate dates: 1/1/2002; 1/1/2003, and 1/1/2004.  Husband asserts she had 4 years from the date that each set of stock vesting to make a request to Husband to see one-half of the stock.   

In support of his argument that Wife had the burden to make her demand, he cites K.A.R. v. T.G.L. , 107 A.3d 770 (Pa. Super. 2014). K.A.R. involved the sell of a business by Husband where Wife knew the date of the sale which occurred in 2004, but waited until 2011 to file a petition for enforcement.  However, the trial court in this current case found that this contract was a continuing contract because Wife agreed that she would not request her share before the stock vested and the Agreement did not provide a time limit on the request, and as such there was not fixed time for payment.  Additionally, Husband acknowledges that he owed his Wife a debt equal to one-half of the net proceeds from the sale of the stock, which tolled the statute of limitations on a continuing contract.   Crispo v. Crispo, 909 A. 2d 308, 313 (Pa.Super. 2006) provided that acknowledgment of a debt consistent with a promise to pay a debt may toll the statute of limitations or remove its bar.  

The trial court also concluded that Wife was under no obligation to request the sell of one-half of the stock when it was vested, but she was entitled to do so.  Husband, however, was obligated to pay Wife one-half of the net proceeds from the sale of the stock, whenever Wife tendered such a request.  Husband had the option to sell the stock for up to 10 years once the stock vested.  Since Husband was the sole owner, Wife would have no way of independently knowing when the stock vested or when it was sold.  Once Wife learned that he had sold the stock, she promptly requested her share of the proceeds,  Husband failed to comply.

Here, although the vesting dates were known, and Wife was entitled to demand that Husband sell her share of the stock at those times, she was not required to do so.  She was not compelled under the Agreement to demand her share at any particular time.  Husband also acknowledges that Wife was owed one-half of the net proceeds from the sale of the stock.   As such, Husband’s argument failed.

Doctrine of Laches

The doctrine of laches is one of equitable relief.  In order to sustain a claim under the doctrine of laches, one has to establish: (a) a delay arising from petitioner’s failure to exercise due diligence; and (b) prejudice to the respondents resulting from delay.  “Prejudice” requires that the respondent must have changed his position to his detriment.  The burden was upon Husband to prove this.  Husband did not notify Wife of sale nor did he pay to her her share of the proceeds when the sale was completed.  Having failed to do what he was contractually obligated to do he is not entitled to relief under the doctrine of laches.

Other Arguments

Husband also argued that the settlement agreement’s “Releases” provision prevents Wife from suing him “for the purpose of encforincg any of the rights relinquished under this paragraph.”  However, the Releases provision provides for an exception as provided in the Agreement.  It provides for wife to enforce the terms of the agreement.  

In his fourth argument, Husband also challenged the finding of contempt.  23 Pa.C.S. 3105(a) provides that a contempt proceedings is a remedy to enforce the agreement.  23 Pa. C.S. 3502(e)(9) “provid[es] that “If, at any time, a party has failed to comply with an order of equitable distribution, … with the terms of an agreement as entered into between the parties, after hearing, the court may, in addition to any other remedy available… in order to effect compliance … find the party in contempt.”

To make a finding of civil contempt, one must prove:

1. That the condemner had notice of the specific order or decree which he is alleged to have disobeyed.

2. That the act constituting the contempt’s violation was volitional,

3. That the contemnor acted with wrongful intent.

The trial court found that Husband had notice of the Agreement. He willfully did not pay to wife her one-half share of the net proceeds from the sale of the vested options. The court also found that he acted with willful intent. The court also found that the statute provides civil contempt as a remedy to enforce an agreement where a marital settlement agreement was incorporated but not merged into a divorce decree.

Husband withdrew his fifth issue. 

Conclusion

This non-precedential opinion reminds us of one main thing: each party should know and keep track of their rights and obligations under their agreement, especially if there is a significant time-lapse between now and when a particular clause in your agreement can be enforced.

Is Your Own Technology Working Against You in Your Divorce or Custody Case?

Photo Description: Person holding a phone with an open laptop on a desk showing a Facebook homepage.

The convenience of smart phones, computers and the internet are fantastic tools for modern times. However, when contemplating a divorce or going through a custody battle, you may want to consider steps to be taken to protect yourself and your privacy. Here are a few tips to consider. 

Text Messages: You words may be used against you.  However, the opposite is also true, the text messages and emails that your spouse sends you can also be used against him/her.  It goes without saying that you should never threaten any type of violence.

You also want to keep any incriminating text messages and emails.  Also, note that your spouse may try to bait you into saying something that you will regret later. Consider whether you need to respond and whether your response can be limited.  

Apps: Another major factor to consider is your spouse’s access to location services. Some people have apps for their phone or vehicle that allow certain people access to their current location. Some of these apps have seemingly innocuous functions, like helping you find a misplaced phone or laptop. However, just like social media tracking services, anything and everything that can be used to track your current or previous locations (including GPS logs in your car), needs to be disabled if possible.

Social Media: You may want to change your social media passwords so that your spouse cannot access your accounts and post as you. Besides that first step, here are some extra security measures and tips that can help you maintain your privacy on social media sites like Facebook.

Consider whether you may want to make it more difficult for your spouse to view your posts by unfriending them and anyone who might help them view your profile. Review your account privacy setting to make sure only the people you want viewing your profile are able to do so. However, understand that this doesn’t mean your social media posts can’t be used against you; your spouse’s attorney may still be able to access them through discovery and other measures and present them in court. Because social media posts are never truly private, you should always be careful what you post. 

Email: You should consider getting a new email address and a new password. One of your first priorities should be ensuring that your spouse cannot see communications like emails and text messages to your lawyer. Also consider changing the passwords for any email accounts and the unlock codes for your phone and other devices.

While we are on the email topic: Work emails (especially if you own a business that your spouse may have an interest in) could be ‘discovered’ through requests. In other words, your spouse and/or his/her attorney could end up having access to emails you’ve sent from this address.  Here are some steps you could take to ensure your online security:

1. Create a new email address to communicate with your lawyer.

2. Change the passwords to all of your existing email accounts.

3. Check the connections to the cloud.

4. When you consult or hire an attorney, let them now if it is ok to send mail addressed to you to your home address.

Additional Security: At the same time you are changing passwords, you should consider setting up an extra layer of security known as two-step verification. This setting makes it so that any new logins or password changes will require a code (usually sent by text message to your mobile phone) to complete the login. This prevents makes it harder for someone to guess a password for a site and getting in without you knowing.

Passwords: Consider using a secure password manager such as 1Password, LastPass, or BitWarden. Not only do these password managers store your passwords securely, but many will generate secure passwords for you. 

It is important that you keep yourself, your identity and your accounts safe.

9 Things To Know About Spousal Support

Photo by FlamingoImages/iStock / Getty Images

Many couples are aware that they can receive or be required to pay child support if the parties separate.  However, some are not aware of spousal support or understand how it is different from alimony.  Spousal support is definite by Pennsylvania statute as “care, maintenance, and financial assistance” which can be received once the parties separate, but not after the divorce is finalized.  23 Pa.C.S. Section 3103.Alimony is post-divorce support is determined by the analysis of the 17 factors in 23 Pa.C.S. Section 3701(b).  Here a few things you should know about spousal support.  

1. Either spouse can receive spousal support. Gender roles have conditioned many to believe that men are not or should not receive spousal support.  The PA statutes and guidelines do not discriminate on the basis of gender.  If the spouse seeking support is eligible to receive support, they may do so regardless of gender. 

2. You can receive support without filing a divorce complaint. While generally, it is more difficult to prove a claim for spousal support while you are still residing with your spouse, it is not impossible.  You must prove that the payor spouse is not contributing at all to the expenses of the household.  Generally, successful claims are where one spouse has left the marital home.

3. The burden is on the receiving spouse to show they are entitled to support.  The spouse hoping to receive support has the burden of showing that payor spouse either 1) agreed to the separation, 2) that payor’s spouse conduct justified the receiving spouse’s leaving the marital home, or 3) there was some other legal cause to justify a temporary departure.  

4. The amount of support is calculated using the Pennsylvania Guidelines.  The guidelines take into consideration the reasonable needs of the child or spouse seeking support and the ability of payor spouse to provide support.  The guidelines primarily look to the incomes and earning capacity of the parties, and may deviate from the guidelines for unusual needs, extraordinary factors, etc.  A court may take into consideration the length of the marriage when awarding spousal support.  A relatively short marriage (e.g. 2 months) may should not require a spouse to pay support.  There would be injustice to the spouse to pay this.  

5. Spousal support can take a form other than cash and may include the payment of other expenses.  For example, spousal support may include the continued payment of the mortgage on the marital residence, real estate taxes, or even a percentage of a spouse’s reasonable and necessary healthcare expenses.  

6. There are defenses to paying spousal support. If the spouse who would have to pay the support does not believe that dependent spouse is entitled to spousal support, they can assert defenses. The paying spouse would have to show by clear and convincing evidence that the dependent spouse’s conduct provides grounds for divorce. Marital misconduct, lack of consent or good cause for the separation are also defenses to paying spousal support.  The paying spouse can also argue one of the fault grounds. The fault grounds are: 

   1. Adultery

   2. Abandonment without cause for at least one year

   3. Cruelty, including domestic violence, which endangered the life or health of the injured and innocent spouse 

   4. Bigamy

   5. Conviction of a crime and imprisonment for two or more years, and

   6. Humiliating the innocent spouse in such a way that makes the marriage intolerable.

7. Cohabitation can cause spousal support to be terminated. It is important to note that cohabitation can cause the termination of spousal support, but a spouse may be entitled to alimony pendente lite, a different form of pre-divorce support that is based on need and not entitlement and can help the dependent spouse to pay his or her legal costs and maintained themselves until the finalization of the divorce. 

8. Spousal support ends with the grounds are approved, not when the divorce is final.  This is an important distinction.  If the parties are seeking to the divide the marital assets and have not reached an agreement, there will need to be a hearing before a divorce master.  The grounds for divorce (consent of the parties, separation, or one of the fault grounds) must be approved before the assets are divided.  Once the grounds for divorce are approved, the receiving spouse is no longer entitled to spousal support.  This can leave that spouse without enough means to continue to fight for the equitable distribution of the assets, a very important and sometimes expensive part of the process.  Alimony pendente lite, which must have been raised prior to the approval of the grounds, can provide that support. 

9. How spousal support is calculated.  The PA Guidelines provide support a formula for determining the amount of spousal support. 

   1. Where there is no child support claim: The domestic relations section will take 33% of the higher earning spouse’s net income (as determined by the statutes, not their take-home pay), and subtract 40% from receiving spouse’s income.   In an example where Wife’s net monthly income is $6000 and Husband’s income is $3000:  ($6000 x 33%) - ($3000 x 40%) = ($1980 - $1200) = $780.

   2. Where there is a child support claim: Where there is a child support claim in addition to the spousal support claim, the percentages use to run the calculation are lower.  Instead we use 25% of the higher earning spouse’s net income and 30% of the receiving spouse’s income:  ($6000 x 25%) - ($3000 x 30%) = ($1500 - 900) = $600.  The child support obligation and spousal support obligation will be added together to create one Order.

There are many facts, defenses, and deviations to be considered in the entitlement, determination, and calculation of support.  You should always speak with an attorney about the facts specific to your case to determine your rights and obligations. 

An Involuntarily Psychiatric Commitment, Medication Control, and a Postnuptial Agreement.

A recent PA Superior Court Case provides guidance on the analysis of duress claims to invalidate marital settlement agreements.

Photo by PeopleImages/iStock / Getty Images

In recent a PA Superior Case, Lewis v. Lewis, (Pa. Super. 2020), a case with interesting facts provided additional insight in the analysis of duress with respect to marital agreements. In this case, Husband petitioned the court to enforce the post-nuptial settlement agreement and for Wife’s contempt of that settlement agreement.  Wife filed a counter-petition complaining that she signed the settlement agreement under duress due to “constant fear of Husband’s punishing retribution, in a daze from his manipulation of her medication and without opportunity to consult an attorney.”  She also alleged fraud, claiming that Husband told her that the document was needed for his job and not a settlement of the marital property. 

THE BACKGROUND

Husband (46) and Wife (20) met in 2013 when he hired her to care for his two young children.   They married after three weeks.  Wife dropped out of college and became a stay home mother to Husband’s two children.  Within a year, the couple had their own child.  There were numerous legal filings including a June 2016 Protection From Abuse (PFA) order granted in favor of Husband against Wife.  Husband also claimed she violated the Order.  There were criminal charges, Wife was found in contempt, and she ended up incarcerated.

The couple’s story takes a turn during a July 2018 PFA hearing where there was evidence that Husband was actual perpetrator of the abuse.  According the Opinion, Husband used his June 2016 PFA order “as a weapon against wife.”  He would invite her back into the marital home and file contempt charges against her. The trial court found that “Husband had been playing the system, using the Monroe Court of Common Pleas as one tool in furtherance of his very calculated, complex, web of domestic violence, control and intimidation against Wife.” (See Trial Court Opinion).  Wife was granted the PFA and was awarded exclusive possession of the marital residence and temporary sole custody of their child together.  Husband appealed the decision, and the court affirmed.

According to the opinion, in December 2016, following “Husband’s extensive abuse, including his manipulation of Wife’s mental health and medication, Wife’s attempted suicide.”  Husband brought up the idea of Wife signing a settlement agreement, which he assured her was simply a paper trail for his job with the federal government.  Wife was released from the hospital in December 2016 but continued to have difficult with her mental and physical state.  Husband continues to disperse her medication which made her feel nauseous and apathetic.  Twice in January of 2017, Wife met with her psychiatrist to change her medication.  Husband forced his attendance at these appointments.  

According to Wife, on the day of the last appointment, January 13, 2017, Husband presented her with a post-nuptial agreement in the car after the appointment and allowed her ten minutes to review it as he drove her to a notary public.  He again told her that it was only a paper trail for work and they would not get a divorce.  Wife said she was uncomfortable and did not want to sign anything without consulting an attorney, Husband stated, “If you dare get a lawyer, I’m divorcing you and you will never see your daughter again.”  Wife said she believed him due to his past infliction of punishments on her when he disobeyed her.  Wife signed and Husband waited in the car while she went into the notary’s office.  After that, Husband drove to his lawyer’s office, entered alone and had his signature notarized.  Husband then refused to give Wife a copy of the signed agreement.  

Once Wife received the PFA granting her exclusive possession of the marital residence, Husband filed a petition to enforce the agreement, asserting his right to exclusive possession of the marital home and that Wife was in contempt of that agreement.  Wife countered challenging the validity of the agreement on the grounds of duress and fraud in the inducement.  The trial court issued an order invalidating the settlement agreement on the grounds of duress and fraud and dismissed Husband’s petition as moot. 

THE DEFINITION OF DURESS

Settlement agreements are guided by contract laws.  Fraud, misrepresentation, or duress are the reasons that an agreement may be invalidated.  Because contracts require mutual assent to enter into a contract, it cannot exist where there was duress.  The burden is upon the party trying to invalidate the agreement to show by clear and convincing evidence to avoid or nullify it.  

The PA Supreme Court has defined duress as follows: “that degree of restraint or danger, either actually inflicted or threatened and impending, which is sufficient in severity or apprehension to overcome the mind of a person of ordinary firmness.  The quality of firmness is assumed to exist in every person competent to contract, unless it appears by reason of old age or other sufficient cause he is weak or infirm.  Where persons deal with each other on equal terms and at arm’s length, there is a presumption that the person alleging duress possesses ordinary firmness.  Moreover, in the absence of threats of actual bodily harm, there can be no duress where the contracting party is free to consult with counsel.” Carrier v. William Penn Broadcasting Co., 233 A.2d 519, 521 (Pa. 1967).

According to the opinion, in their “review of the relevant Pennsylvania case law, no spouse has ever convinced a court to void a settlement agreement on grounds of duress.” (pg. 14).  The Court acknowledges that in many cases, a party may have faced unseemly pressures to sign an agreement, but the court concluded that they did not amount to duress in the legal sense.  In one case, Simeone v. Simeone, Wife alleged she was forced to sign a prenuptial agreement on the eve of her wedding, and that she could not seek counsel without the trauma, expense, and embarrassment of postponing the wedding.  In another case, Adams v. Adams, wife alleged that she had low self-esteem, an abusive husband, fear of the judicial system, and received treatment for ADD and alcoholism.  The trial court and Superior Court affirmed the trial court.

We can break down the duress analysis into three parts. 

1. Duress or restraint

2. Whether a person of ordinary firmness could overcome the aforementioned degree of restraint and danger.

3. Is the party free to consult with counsel?

The court found that because of Husband’s actions in the past including making her sleep outside in the past, making threats and then making good on those threats, there was duress.  Husband’s specific threat to Wife about not seeing her child while inside of the car on the way to notary was a specific threat.  The court also notes how Husband had exploited the court system.  And while the there was no “actually inflicted” physical abuse in the car, Wife convinced the court that the restraint on her will was “threatened” and the danger to her person was “impending.”  

The second part of the analysis concerns whether the restraint or danger was severe enough to overcome the mind of a person of ordinary firmness.  The trial court found that Wife did not possess the “ordinary firmness” on account of husband’s control over Wife through intense and sustained domestic abuse, Wife’s attempted suicide in close proximity to the execution of the settlement agreement, and Wife’s heavy medication.  

The Court examines whether the test of “ordinary firmness” should be an objective or subjective test.  The Court opines that the test starts out as objective, but the presumption of “ordinary firmness” can be rebutted, which then shifts the analysis to a subjective test.  In the Carrier case, the Court found that “the quality of firmness is assumed to exist in every person competent to contract, unless it appears that by reason of old age or other sufficient cause he is weak or infirm.” The unique nature of a marriage supports the use of a subjective tests.  Parties to a marriage contract “do not quite deal at arm’s length, but rather at the time the contract is entered into stand in a relation of mutual confidence and trust” Simeone, 581 A.2d at 167.  Parties to a marriage contract have intimate knowledge about whether the part is weak or infirm. 

In this case, Wife had been under psychiatric care for some time before the execution of the settlement agreement.  Husband “forced” his way into the psychiatric appointments in spite of Wife’s protests, successfully suggested an unnecessary diagnosis, dispensed Wife’s medications which he kept locked away, and refused to tell her what they were or what they were for.  Wife then attempted suicide after Husband told her leave the house, she would never see her daughter again, and urged her to kill herself.  Husband then involuntarily committed her to a psychiatric hospital and then mentioned for the first time signing a separation agreement.  Wife was still physically and psychologically unstable.  After her release from the hospital, Wife continued to feel unstable, and though her psychiatrist changed her medication, Husband continue to dispense the medication to wife.  After leaving Husband, Wife was able to obtain a PFA and take control of her own mental health.  According to Wife, none of the antidepressants or mood stabilizers were necessary.  

The Court found that given Husband’s systematic mental and physical abuse and the side effects of the unnecessary medication that Husband controlled, Wife rebutted the presumption that she possessed ordinary firmness at the time she signed the agreement and therefore the Court could consider her specific frame of mind. 

Finally, the Court turns to whether she was free to consult with counsel.  This final part of the analysis is often where many claims fail.  No matter how severe the actions or tactics were, if the party was free to consult with an attorney, the claim fails.  The burden is on the party seeking to invalidate the agreement that to prove that she did not have an opportunity to consult with an attorney.  The opportunity to consult with an attorney may occur long before a proposed agreement is ever reduced to writing.  In this case, the Court found that Wife had no time to consult with an attorney.  Wife claimed Husband told her that she would never see her daughter again if she consulted with an attorney. The agreement was given to her during the car ride from her therapist and she was taken from there immediately to the notary. 

The Court upheld the trial court’s opinion to invalidate the post-nuptial agreement on the basis of duress and fraud.  

CAN ALIMONY PAYMENTS BE TERMINATED UNDER A MARITAL SETTLEMENT AGREEMENT?

CAN ALIMONY PAYMENTS BE TERMINATED UNDER A MARITAL SETTLEMENT AGREEMENT?

Photo by designer491/iStock / Getty Images

The Case of Rosiecki v. RosieckI

In this Superior Court opinion, Rosiecki v. Rosiecki, PA Super 92, Husband tried to terminate his $900 monthly alimony payments to Wife. The previous court found that it did not have the authority to modify the terms of the Husband’s alimony obligation because it was an agreement made by the parties and not court-ordered.  Husband also argued that the court should have held an evidentiary hearing before denying his petition to terminate his alimony payments.

The parties entered into a marital settlement agreement while they were before the Master on December 7, 2009.  The marital agreement provided that Husband is to pay Wife $900 in alimony until such time that all of the four properties in the estate are sold.  The agreement specifically provided the alimony payment would be reduced by specific percentages based upon the sale of the properties with each property having its own specific percentage. Additionally, upon the sale of the each property, Wife would receive 35% of Husband’s net interest in that property. The agreement was incorporated into but not merged into the final divorce decree that entered on January 21, 2010.  

On January 7, 2019, Husband filed an emergency petition for Special Relief to Terminate Alimony and a Request for Hearing. The properties had not yet been sold.  He argued that he could not afford to make alimony payments to Wife because he was out of work and experiencing health problems.  He also argued that he did not understand the settlement as it relates to the payment and/or termination of alimony.  He also believed that the terms in the agreement were incorrect and in error.  He also argued that the agreement did not take into account all of the resources and income of Wife or Husband’s necessary expenses and loss of income. 

WIFE MAKES MOTION TO DISMISS HUSBAND’S PETITION

At the hearing on April 10, 2019, Wife made an oral motion to dismiss the petition.  The trial court directed Wife to file a written motion and ordered Husband to file a response.  In her motion, Wife argued that the trial court did not have statutory authority to modify the terms of the alimony obligation because it arose from the parties’ agreement and not from a court order.  In his response, Husband incorporated the same arguments that he raised in the original petition.  He also requested a hearing and for the taking of testimony and the creation of a record.

The trial court found that the “the terms of the agreement… are clear and unambiguous and provide no language for modification or extension or termination.”  It also provided that the “alimony awarded is a contractual agreement entered into by both parties, who swore under oath understanding of the agreement. Additionally, there is no evidence of fraud, mistake, or duress.  Therefore, this court cannot modify the terms of the agreement.” 

Husband filed a notice of appeal on May 31, 2019 and raised 13 issues. The court reordered as follows:

1. Did the trial court err in failing to find that 23 Pa.C.S. Section 3701 contains a provision for the modification, suspension, or even termination of alimony, and in failing to find that it had both the jurisdiction and power to consider the Emergency Petition for Special Relief to Terminate Alimony and Request for a Hearing Filed by [Husband]?

2. Did the trial court err in granting the [Wife’s] Motion to Dismiss [Husband’s] Petition to Terminate Alimony?

3. Did the trial court abuse its discretion or commit an error of law in failing to permit the calling of witnesses, the presentation of evidence and the cross-examination of witnesses before issuing its May 1, 2019 order?

4. Did the trial court abuse its discretion or commit an error of law where it appears from a review of the record that there is no evidence to support the [trial] court’s findings?

Husband’s argument relies heavily on 23 Pa.C.S. Section 3105 on the effect of agreements between the parties which provides:

(a)  Enforcement.--A party to an agreement regarding matters within the jurisdiction of the court under this part, whether or not the agreement has been merged or incorporated into the decree, may utilize a remedy or sanction set forth in this part to enforce the agreement to the same extent as though the agreement had been an order of the court except as provided to the contrary in the agreement.

(b)  Certain provisions subject to modification.--A provision of an agreement regarding child support, visitation or custody shall be subject to modification by the court upon a showing of changed circumstances.

(c)  Certain provisions not subject to modification.--In the absence of a specific provision to the contrary appearing in the agreement, a provision regarding the disposition of existing property rights and interests between the parties, alimony, alimony pendente lite, counsel fees or expenses shall not be subject to modification by the court.

The court found that because the alimony obligation arose from the marital settlement agreement that was incorporated but not merged into the divorce decree it survives the decree and is enforceable at law or equity.  The agreement is governed by the law of contracts unless the agreement provides otherwise. The court goes on to state that the terms of the agreement cannot be modified by a court unless there is a provision in the agreement that specifically provides for judicial modification.  

A settlement agreement is “not governed by statute, but [by] express mutual agreement of the parties.” See Woodings v. Woodings, 601. A.2d 854, 859 (Pa. Super. 1992).  Alimony payments, therefore, are “not to be subject to modification by the court” unless the agreement contains a “specific provision to the contrary.” 23 Pa.C.S. Section 3105(c).  The purpose of marital settlement agreements is to encourage agreements by the parties in that the court will encourage them as written.  See Egan v. Egan, 125 A. 3d 792, 798 (Pa. Super. 2015).  

HUSBAND REQUESTED A HEARING TO PRESENT EVIDENCE AND TESTIMONY.

Husband also argued that the trial court should have held a hearing where he could present evidence and witness testimony.  Aside from attempting to prove his “changed circumstances,” Husband also wanted to show the “intent of the parties to the martial agreement.”  In his emergency petition, Husband outlined the evidence he planned to submit which went to the change in circumstances. Therefore, even if the court accepted his allegations as true, Husband had no legal basis for relief because a marital settlement agreement that does not specifically allow for modification cannot be changed. The trial court also found that the terms were clear and unambiguous and there was no need for a hearing to determine the parties’ subjective intent.  Finally, since Husband did not allege fraud, misrepresentation, or duress he failed to raise any claims that could entitle him to relief.  

The court upheld the trial court’s conclusion that Husband was not entitled to an evidentiary hearing or a modification to the alimony payments.   

The 17 Alimony Factors

When deciding alimony, the court will consider whether it is necessary, how it is to be paid, along with the amount and duration and manner of alimony payments, the courts will consider the following 17 factors:

1. The relative earnings and earning capacities of the parties;

2. The ages and the physical, mental and emotional conditions of the parties;

3. The sources of income of both parties including, but not limited to, medical, retirement, insurance or other benefits;

4. The expectancies and inheritances of the parties;

5. The duration of the marriage;

6. The contribution by one party to the education, training or increased earning power of the other party.;

7. The extent to which the earning power, expenses or financial obligations of a party will be affected by reason of serving as the custodian of a minor child;

8. The standard of living of the parties established during the marriage;

9. The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment;

10. The relative assets and liabilities of the parties;

11. The property brought to the marriage by either party;

12. The contribution of a spouse as a homemaker;

13. The relative needs of the parties;

14. The marital misconduct of either of the parties during the marriage.  The marital misconduct after the date of final separation shall not be considered except in cases of abuse;

15. The Federal, State, and local tax ramifications of the alimony award;

16. Whether the party seeking alimony lacks sufficient property, including, but not limited to, property distributed under Chapter 35 (relating to property rights), to provide for the party’s reasonable needs; and

17. Whether the party seeking alimony is incapable of self-support through appropriate employment.  

Alimony may be for either a definite or indefinite period of time. The court shall set forth the reasons for any award or denial of alimony in the Order.  The awards may be modified, suspended, terminated, or reinstituted. Remarriage of the party receiving alimony shall terminate the award of alimony. Cohabitation may also cause the alimony award to be terminated. If you have questions about alimony and how these factors may work in your case, you may contact us at 215-564-1580.

Pet Custody? Who gets the dog in the divorce?

Who gets the dog in the divorce?

Currently, pets are treated like other inanimate objects or property in Pennsylvania divorces. A bill introduced on May 8, 2019 by Rep. Anita Astorin Kulik seeks to establish factors to determine who should get a companion animal in a divorce:

The bill describes companion animals as a “domesticated living being referred to as a pet” or an animal which “has been bought, bred, raised or otherwise acquired in accordance with applicable law for the primary purpose of providing the owner with assistance in relation to a disability, security or companionship, rather than for business or agricultural purposes.”

When determining who should be awarded the family pet, H.R. Bill 1432 provides six factors the court should consider:

(1) Whether the companion animal was acquired prior to or during the marriage.

(2) The basically daily needs of the companion animal.

(3) The party who generally facilitates veterinary care for the companion animal.

(4) The party who generally provides the companion animal with social interaction.

(5) The party who generally ensures the compliance with State and local regulations regarding

the companion animal.

(6) The party who provides the greater ability to financially support the companion animal.

Finally, the bill gives some guidance in agreements in that they may provide for the periods of time during which each party will possess the companion animal and the financial responsibility of each party regarding the care of the companion animal. This essentially allows for the court have pet custody agreements entered into by agreement of the parties.

Here is a link to the full bill.

A New Bill Seeks to Change the Way Spousal Support and Alimony Pendente lite is Determined.

House Bill No. 1250 stands to change the way that spousal support and alimony pendente lite (APL) is determined in Pennsylvania.  Instead of using the Pennsylvania Support Guidelines to determine the amount of support subject to certain deviations, House Bill 1250 will focus on the "basic needs" of the petitioning spouse.  Alimony pendente lite is an order for temporary support granted to a spouse during the pendency of the divorce.  Spousal support is defined as care, maintenance and financial assistance. 

The Bill reads, in part, that the court may allow a spouse "reasonable alimony pendente lite or spousal support upon determining the that the income and resources of the petitioning spouse are insufficient to provide for that spouse's basic needs, including the costs of prosecuting or defending the action."  It also provides for an award of reasonable counsel fees and expenses and the authority to award exclusive use of the family home or any other dwelling which is available for use as a residence of either party.  It also may direct adequate health and hospitalization insurance coverage be maintained for the dependent spouse pendente lite.  The Bill also provides that a determination of either types of support may not be based solely upon any rule of court setting forth presumptive guidelines for the calculation of support or upon the party's standard of living during the marriage.

The purpose of the change in APL and spousal support, according to the memorandum by Representative Sheryl M. Dozier,  is that the current "guidelines don't even take into account what should be threshold questions: Can the parties independently meet their own needs? Will one party otherwise be disadvantaged in the divorce process if not granted temporary financial support? Over-reliance on a formal that does not take into account the purpose of APL into account, the fact that the payments end only wen the divorce is finalized and the fact that APL awards are unappealable all work together to encourage inefficiency and unfair dealing."  The memo also goes on to state that the use of the guidelines have turned into "a tool for financial coercion." 

The current support guidelines which may be found at Pa. R.C.P. 1910 16-4 were promulgated by the Supreme Court of Pennsylvania.  They allow for a rebuttable presumption of support subject to certain deviations found at Pa. R.C.P. 1910.16-5(b)(9) such as: unusual needs and unusual fixed obligations, other support obligations, relative assets and liabilities of the parties, standard of living of the parties and their children, and the duration of the marriage among other factors. Read all of the factors here. 

The guidelines provide some uniformity and predicability as to how spousal support and alimony pendente lite will be determined.  A focus on the "basic needs" of the spouse will likely require a more detailed hearing process to determine the actual "basic needs" of the petitioning spouse as well as the income of the parties, which may further delay and harm both the dependent and paying spouse. 

House Bill No. 1250 was referred to the judiciary on April 19, 2017.  

The Wait Time for a Divorce Just Got Shorter.

How long do you have to wait for a divorce?  This question varies based upon the type of divorce that you are seeking.  However, the wait time for an irretrievable breakdown, no-fault divorce, also known as a Section 3301 D divorce, just got shorter.  In October, Gov. Tom Wolfe signed a bill that reduced the amount of time the parties have to be separated to just one year, instead of two years.  

Where the parties have lived separate and apart for at least ONE year and one spouse files a complaint and affidavit stating that the marriage is irretrievably broken, the court may grant a divorce.  This is for all separations that begin after December 3, 2016.  All separations beginning before that date will continue to follow the two year rule.

Aside from reducing the amount of time a party had to wait to divorce from the uncooperative spouse, this can also affect spousal and alimony pende lite payments.  Before, the non-paying spouse could almost force the paying spouse to wait two years for a divorce and continue to receive payments.  This time is cut down to half.  Of course child support payments could persist.  

Separate and apart does not necessarily mean living separately, though that is an easy way of showing the parties have separated.  There are defenses to spousal support and alimony pende lite payments.  There are other types of divorces, such as fault or mutual consent.  If you would like more information or wish to discuss your case, please contact us for a consultation. 

Which parent is responsible for the cost of transportation when they share custody?

A custody agreement will create the need for transportation.  At times, the transportation may become significant in terms of time and money.  While there are no set rules for determining who bears the burden of the cost of transportation, a court may find that the parent moving away and creating the need for travel costs may be responsible for costs.  The courts will consider the financial ability of each party to incur the costs. Please also be aware of that Pennsylvania courts have found that where one parent is responsible for transportation costs in order to exercise their partial custody, they may be entitled to a reduction in child support to cover the cost of transportation.

In addition to costs, parents also want to know whose responsibility it is to transport between the parents.  This designation is not always considered, but can cause unnecessary headaches if not defined clearly.  Even if the parties are amicable, it is a good idea to establish who transports where and when, especially if there is considerable distance between the parents.

Will the courts keep siblings together?

In determining which parent will get custody, will the courts give greater weight to keeping siblings together?  What about half-siblings?

The main focus of the court is to determine the best interest of the child.  Whether the best of interest of the child is to be with their siblings primarily is to be determined.  In all cases, the courts use the 16 factors to determine what is in the best interest of the child or children.  The courts understand that the relationship a child shares with their siblings is an important one that can play a large role in their development.  As such, one of the factors the courts consider is which party is likely to keep siblings together.  The courts will also consider the requests of the child, depending on their age and reasoning.  This is includes if the child is requesting to live apart from their siblings.  

In Philadelphia, the courts have looked at a compelling reason standard.  This means that the courts will usually look toward keeping the child with their siblings unless there is a compelling reason not to do so.  However, if there is a substantial custody arrangement that can still satisfy the goal of significant relationship between the children, the courts will allow the separation of the siblings. These principals can also be applied to half siblings.