Monday, December 19, 2005

Wife gets ALL of the assets plus husband owes her an additional 80K!!!!

In Pennsylvania and New Jersey divorces, courts divide the assets of divorcing couples using a concept called equitable distribution. The court determines the value of all of the marital assets and debts and then determines a percentage division, considering a number of factors, such as the age and earning capacity of the parties, each person’s contribution to the assets and debts of the marriage, the length of the marriage and the standard of living of the parties. In a community property state, generally speaking, the court simply divides the assets and debts on a 50/50 basis. However, equitable distribution allows flexibility. Generally, but not always, the party with the lower earning capacity usually retains more of the assets, the theory being that the spouse with the ability to earn more can recover financially through income. So, in a case where the husband $100,000 per year and the wife earns only $25,000 per year, the wife may be awarded 55 percent of the marital assets while husband only receives 45 percent. The percentage divisions usually stay in the 50-60 percent range, absent extenuating circumstances.

Recently, however, a trial court took the unusual step of awarding a Wife 100 percent of the marital assets. In addition, the trial court ordered the husband to pay wife an additional $83,830 which it termed "equitable reimbursement." Equitable reimbursement is a doctrine whereby a court feels that a spouse should be compensated for contributions to the marriage but there are simply not enough marital assets to award to the spouse.
In the case of Wang v. Feng (2005 PA Super 412), full text available at <,/">www.aopc.org>, through much of the eighteen year marriage, Husband, a doctor, pursued his dream of becoming a specialist in oncology. For fifteen of the eighteen years of marriage, Wife had supported the family. For some of those years, Wife was the sole breadwinner. Wife followed Husband as he pursued training, from Rochester, New York to Jacksonville, Florida to Pittsburgh, Pennsylvania. Notably, with all of the moving and the care of the parties’ daughter, Wife placed her career on the backburner, often taking positions for which she was overqualified because nothing else was available.

Unfortunately, once Husband reached his long awaited goal, he decided to end the marriage. Therefore, Wife had placed her own career on hold, thinking that Husband and Wife were working on the joint goal of advancing Husband’s career. However, when Husband decided to end the marriage, Wife realized that she would never share in the good fortune that would come with Husband’s long sought after position as an oncologist. In fact, in his first year as a specialist, Husband would earn $225,000 while Wife’s earning capacity hovered around $50,000 per year. Notably, the court found that without Wife’s contributions over the years of the marriage, Husband would have never been able to pursue the extensive education and training regimen.
Notably, in this case, the entire marital estate was only valued at approximately $57,000. Accordingly, in attempting to reimburse Wife for her extreme contributions to the marriage, sufficient assets simply did not exist to even things out. Thus, the court directed Husband to pay additional monies.

The court’s unusual decision does not indicate that every spouse who supports their family, especially while the other party is pursuing a career goal, will receive such an extreme result. However, the unique facts of this case resulted in an unusual award. Realistically speaking, however, the sad fact remains that Husband will earn more in one year than Wife received from the entire marriage — so even though Wife may have one this one battle, she will most likely have a more difficult time financially than Husband as he moves forward in an extremely lucrative career. The court, by fashioning an extreme award for Wife, attempted to compensate her for her contributions.

Who's Sorry Now?

Jessica Simpson’s lack of a prenuptial agreement may mean that she must fork over half of the $30 million that she recently earned.

Rumor has it that, at the time that Jessica Simpson married Nick Lachey, he was the breadwinner in the family from his music career with boy band 98 Degrees. She apparently refused to sign a prenuptial agreement – perhaps wanting to make sure she would not be excluded from the prospective riches of her new husband’s music career.

They married, signed on for a reality series on MTV, became tabloid darlings and Jessica’s career took off. She landed a movie (Dukes of Hazzard), a line of cosmetics (Dessert) and sold some music along the way. Jessica then became the primary breadwinner - and news outlets report that she earned in excess of $30 million last year. Meanwhile, husband Nick appeared on a television show here and there but simply did not reach the success, market saturation and accompanying financial windfall that Jessica enjoyed. Nick’s main job seemed to be to appear in photographs next to Jessica. (See Federline, Kevin, who took on a similar role for wife, Britney Spears.)

Without a prenuptial agreement, under California’s community property laws, Jessica will most likely have to turn over to Nick approximately half of what she earned during the marriage. (Pennsylvania and New Jersey are equitable distribution states – if Jessica lived here - she might even have to turn over more!). She may even be required to pay spousal support to Nick - due to her much higher earning capacity.

So - the lesson to learn is that no one has a crystal ball into the future. When negotiating a prenuptial agreement, consider a variety of different scenarios. If you are the primary breadwinner now – you might not be a few years down the road, or vice versa. Prenuptial agreements could have unintended consequences - especially when the situation of either of the parties drastically changes. A Prenuptial Agreement can be amended - even after the marriage - if both parties consent.

This article is intended for general information only - for specific legal advice, tailored to your situation, consult with an attorney.

Monday, December 12, 2005

Paternity Testing: Not an Absolute Right

Does the court always order a paternity test when the identity of the father is in doubt? Sometimes, the court may rule that it is in the child’s best interest to refuse to allow paternity testing.

Generally, if mother and the alleged father are unmarried, the court requires an acknowledgment of paternity by the father or a paternity test. The tests are generally non-invasive. The mother, alleged father and child report for testing. The parties provide identification, sign forms and are photographed and fingerprinted. The parties do not have to appear for testing on the same day. A swab is placed in each person’s mouth and that sample is used for the DNA test. There are no needles or other invasive procedures and the test is pain free. In Philadelphia County, a unit is set up in the basement of the courthouse at 34 South 11th Street to perform the tests.

Even though they are readily available, courts do not automatically order paternity tests. As with all matters surrounding children, the courts first look to the child’s best interests. In a recent opinion, the Pennsylvania Superior Court reversed the trial court’s order for paternity testing. In Buccieri v. Campagna, an alleged father requested a paternity test and while the trial court agreed with the father, the Superior Court reversed that order and found that the test was not in the child’s best interests.

The parties were never married. The parties had a brief relationship which ended when Mother found out she was pregnant. The parties had no further contact. The child was born in 1996. Mother never notified the alleged father or asked him for child support. The parties did not meet again until sometime in the year 2000 or 2001 when they met by chance in a park. This was the first time that the alleged father saw the child. However, he took no action to become involved in the child’s life until 2004, when he filed a Petition for Partial Custody and a Petition for Paternity Testing. By this time, the child was eight years old.

Mother was involved with a man that she intended to marry. That man had filed a Petition to Terminate the rights of the alleged father so that he could adopt the child.

The court noted that the alleged father had done nothing in the intervening eight years of the child’s life to become involved. Although Mother clearly did not encourage his involvement, she was also not obstructive and he generally knew how to get in touch with her if he so chose. He did not ask to see the child, make any effort at communication or offer any type of support. Mother had by now formed a new family unit and her new husband had been acting as the girl’s father for approximately eight years. The court noted the importance of constancy in the child’s life and the stable family that Mother had developed. Based on the alleged father’s inaction over all of that time, the court refused to allow the paternity test.

Opinions of the Pennsylvania Superior Court can be found at www.aopc.org.

Please note that these articles are intended for information only and cannot substitute for specific legal advice, tailored to your individual situation.

Thursday, December 01, 2005

The Squid and the Whale

A recently released independent film addresses the subject of a Brooklyn family facing divorce. The movie, titled the "The Squid and the Whale," has been nominated for various awards and is now playing in theaters. The official website for the movie is www.squidandthewhalemovie.com.

The story takes place in the 1980s and highlights the effect of the divorce on the couple’s two sons. Many of the scenes present the harsh reality of the raw emotions of divorce, sometimes leaving the audience in the theater audibly gasping or sighing. Unfortunately, as a divorce lawyer, I have witnessed many of the behaviors so shockingly portrayed on film so I was not surprised by the storyline.

The divorcing couple each put their own needs before their children’s and the effect on the boys is measurable. Not surprisingly, the parents are so wrapped up in their own problems that they fail to notice warning signs in their sons. Each parent thinks they are better than the other and blames their estranged spouse for the boys’ problems. While this attitude of moral superiority may make the adult feel better, the shifting of blame between the parents does nothing to help the boys through the crisis period in their lives.

The movie addresses many of the common problems of divorce: financing two households on the same incomes that once supported only one, introduction of mom’s or dad’s new boyfriends or girlfriends, scheduling of custody time and the effect of the shifting back and forth on the children, parents taking over roles they might not have had previously (such as cooking dinner), divorcing parents attending children’s school events and even what happens to the family pet . Some legal terms and misconceptions are mentioned but not fully addressed in the film, such as custody and its effect on child support.

Divorcing parents with children, if they are honest with themselves, will see some of their own behavior portrayed in this film. This may be helpful in providing perspective and guidance so that perhaps they can alleviate some of the harmful consequences on their children by recognizing and changing potential harmful behavior.