Friday, October 31, 2008

Thursday, October 30, 2008

Congratulations Phillies

Way to go Phillies!
World Champions !

Friday, October 24, 2008

Home Schooling After A Divorce?

Recently, the Superior Court of Pennsylvania addressed a case from York County, wherein Father objected to Mother continuing to home school the children after the divorce. Apparently, while the parties were still married, they had decided that their two children would be home schooled by Mother. Father had decided not to be too involved in their academics as he was "the breadwinner" of the family. Although Mother had not been educated beyond high school, while the parties were married, they apparently decided that she would be a sufficient person to conduct the home schooling.

Once the parties divorced, Father objected to the home schooling, wanting the children to be enrolled in public, private or charter school. When Mother would not agree, he sought court intervention. However, after testimony, and listening to various witnesses, the court declined to force Mother to enroll the children in a school outside the home.

Father brought his case to the Superior Court of Pennsylvania, asking for a "bright line rule" that when separated parents cannot agree on home schooling verus public schooling, courts should automatically favor public schools. However, the Superior Court declined to adopt a bright line rule, holding that, as in virtually all custody issues, the best interests of the children should prevail.

If you would like to read the case in its entirety, please click here. Reading these cases can provide background into what a court finds compelling or important when making a decision.

Wednesday, October 22, 2008

Divorces of the Rich and Famous

Sumner Redstone (age 85), the Executive Chairman and founder of Viacom, has filed for divorce from his second wife, Paula (age 46). In Los Angeles County, the courts use a form petition. You can review Sumner's divorce petition here.

Tuesday, October 21, 2008

Divorce Ceremonies?

People celebrate weddings, birthdays, bar mitzvahs and graduations -- why not divorces . . .

Click here for an article on the subject from the Hartford Courant.

Quote of the Day

Kind words do not cost much. Yet they accomplish much.

- Blaise Pascal

Sunday, October 19, 2008

Wedding Humor

Hopefully this wedding blooper is not a harbinger of the type of marriage this couple will enjoy!

Friday, October 17, 2008

Congratulations! You Are A Father. Maybe.

Paternity cases tend to crop up in Pennsylvania case law from time to time. Even with the availability of DNA testing, issues of paternity still occasionally need to be settled by the court.

In Pennsylvania, we have the Doctrine of "Paternity by Estoppel." This doctrine generally means that if you hold yourself out as a child’s father and/or provide support to that child, you cannot later challenge paternity, even if a blood test later proves you are not biologically related.

In the case of Ellison v. Lopez, Father attempted to set aside a prior Order of Paternity. Unfortunately, he waited until the child was 4 years old. Apparently, when Mother became pregnant, Father knew that he may not be the biological father. Although he questioned her as to her other relationships, he refrained from getting a blood test. By the time the child turned 2, Father had developed a relationship with the child but noticed that she did not appear to look like anyone in his family. Although he enthusiastically took on the role of dad, he continued to have doubts.

Approximately 4 years after the child’s birth, Father finally had a DNA test performed, and at that time, learned that he was not this child’s biological father. He then attempted to set aside his previous acknowledgment of paternity. However, the trial court denied his request and the appellate Court affirmed that decision.

In this case, Father had held himself out as the parent since the child’s birth. He established a relationship with the child and she knew him as her dad. Although evidence of fraud may preclude the application of paternity by estoppel, the court found that no fraud had occurred.

In the Opinion, the court outlined the five prong test for fraud: (1) a misrepresentation; (2) a fraudulent utterance; (3) an intention to induce another to act; (4) justifiable reliance on the misrepresentation; and (5) damage to the recipient of the fraud. In this case, Father was not frauded. In fact, he had suspicions all along regarding the parentage of the child yet decided not to act. The court denied his request to open the paternity adjudication.

Learn this lesson from this Opinion and other paternity case law: if you have doubts about paternity, or wish to challenge paternity, you should do so immediately after the child’s birth, before acknowledging or signing anything.

Thursday, October 16, 2008

World Series Here We Come

Philadelphia Phillies!

Monday, October 13, 2008

Happy Columbus Day

"The Admiral says that he never beheld so fair a thing: trees all along the river, beautiful and green, and different from ours, with flowers and fruits each according to their kind, many birds and little birds which sing very sweetly. "

Christopher Columbus
28 October 1492

Friday, October 10, 2008

Grounds for Divorce In Pennsylvania

Although virtually ALL divorces in Pennsylvania are granted on "no fault" grounds (under 3301(c) or 3301(d) of the Divorce Code), our statute does provide other reasons.

Understand that "no fault" simply means that the law does not require you to allege that the other side committed a fault. "No fault" does not mean that your divorce will necessarily be faster, cheaper or easier. The length, complexity and cost of your divorce depends on the facts of your particular case.

Here is the statute:

§ 3301. Grounds for divorce

(a) Fault.--The court may grant a divorce to the innocent and injured spouse whenever it is judged that the other spouse has:

(1) Committed willful and malicious desertion, and absence from the habitation of the injured and innocent spouse, without a reasonable cause, for the period of one or more years.

(2) Committed adultery.

(3) By cruel and barbarous treatment, endangered the life or health of the injured and innocent spouse.

(4) Knowingly entered into a bigamous marriage while a former marriage is still subsisting.

(5) Been sentenced to imprisonment for a term of two or more years upon conviction of having committed a crime.

(6) Offered such indignities to the innocent and injured spouse as to render that spouse's condition intolerable and life burdensome.

(b) Institutionalization.--The court may grant a divorce from a spouse upon the ground that insanity or serious mental disorder has resulted in confinement in a mental institution for at least 18 months immediately before the commencement of an action under this part and where there is no reasonable prospect that the spouse will be discharged from inpatient care during the 18 months subsequent to the commencement of the action. A presumption that no prospect of discharge exists shall be established by a certificate of the superintendent of the institution to that effect and which includes a supporting statement of a treating physician.

(c) Mutual consent.--The court may grant a divorce where it is alleged that the marriage is irretrievably broken and 90 days have elapsed from the date of commencement of an action under this part and an affidavit has been filed by each of the parties evidencing that each of the parties consents to the divorce.

(d) Irretrievable breakdown.--
(1) The court may grant a divorce where a complaint has been filed alleging that the marriage is irretrievably broken and an affidavit has been filed alleging that the parties have lived separate and apart for a period of at least two years and that the marriage is irretrievably broken and the defendant either:

(i) Does not deny the allegations set forth in the affidavit.

(ii) Denies one or more of the allegations set forth in the affidavit but, after notice and hearing, the court determines that the parties have lived separate and apart for a period of at least two years and that the marriage is irretrievably broken.

(2) If a hearing has been held pursuant to paragraph (1)(ii) and the court determines that there is a reasonable prospect of reconciliation, then the court shall continue the matter for a period not less than 90 days nor more than 120 days unless the parties agree to a period in excess of 120 days. During this period, the court shall require counseling as provided in section 3302 (relating to counseling). If the parties have not reconciled at the expiration of the time period and one party states under oath that the marriage is irretrievably broken, the court shall determine whether the marriage is irretrievably broken. If the court determines that the marriage is irretrievably broken, the court shall grant the divorce. Otherwise, the court shall deny the divorce.

(e) No hearing required in certain cases.--If grounds for divorce alleged in the complaint or counterclaim are established under subsection (c) or (d), the court shall grant a divorce without requiring a hearing on any other grounds.

Cite: 23 Pa.C.S.A. § 3301

As noted earlier, mutual consent (3301(c)) and irretrievable breakdown (3301(d)) are the two most commonly used grounds for divorce in Pennsylvania.

Thursday, October 09, 2008

Change Those Beneficiary Designations

When you divorce, do not forget to update your beneficiary designations -- on your insurance, your assets and in your will.

Click here to read an article about a woman whose lawyers recently argued her case before the Supreme Court of the United States. When her father died, his beneficiary designation for his retirement account was still his ex-wife, even though they had been divorce for years. Apparently, the divorce paperwork stated that the wife waived all of her rights in his assets. However, the issue at hand is whether a divorce document overrides a written designation.

Do not rely on your divorce paperwork to change your beneficiary designations.

Go through each and every asset, pension, life insurance policy, etc., and make sure your beneficiary designation reflects your current wishes.

Quote of the Day

"Democracy is always a beckoning goal, not a safe harbor. For freedom is an unremitting endeavor, never a final achievement. That is why no office in the land is more important than that of being a citizen."

Felix Frankfurter (of Law and Men)

Tuesday, October 07, 2008

Our Family Wizard

Click here to visit a website (Our Family Wizard) that can assist separated/divorced families with communication, schedules and information management. There is a fee for this site but for families who cannot otherwise manage effectively, it may be a great option.

Resources on the Web

A recent search on google for the term "divorce" yielded me 83,400,000 sites. The sheer volume of information can overwhelm someone, especially if you are already confused or vulnerable. Be careful what you read. Generally, attempting to obtain legal advice from web research can lead you down an incorrect path. However, some basic research will put you in a better position when you do speak with a lawyer -- you will be more familiar with the issues.

The web can also provide resources for people that may not be available from your lawyer. Financial planning, parenting, dating, networking and support/friendship comprise just a few of the topics you can find. Again, these websites are a tool or resource but do not, and cannot, replace knowledgeable advice from a lawyer who practices in the county where you live.

Click here to visit First Wives World - a networking and informative site with blogs, news, tips and videos.

Monday, October 06, 2008

The Divorce Diet

Click here to read an interesting article on this phenomenon in the October 6, 2008 edition of The Dallas Morning News.

Sunday, October 05, 2008

‘‘It doesn’t matter if I spend $10 million. She will not live in that house.’’

I tell my clients that property and support issues in divorce boil down to a business decision: what is the best result I can get - and how much will it cost me to get it?

By way of a basic, simplistic example, if the only asset to divide is a bank account with a value of $5,000, that is currently in your spouse's name, you will have to perform a cost/benefit analysis when you decide whether to litigate that issue. Litigation can be extremely expensive, and unfortunately, it often costs nearly the same to fight over $5,000 as it does to fight over $500,000. The court requires the same filing fees and the same court filings (memorandums, etc.) in each case. Additionally, one must consider the cost for discovery (exchanging pertinent documents) and attorney fees. If your attorney must be in court all day for a hearing, and the attorney charged anywhere from $200 to $400 per hour, that day could cost $1,600 to $3,200. The preparation time for that day in court can sometimes double or triple that cost. Ultimately, the smart litigant will decide how much they want to spend, and whether the litigation is worth it.

Since divorce is fraught with so many personal issues - other motives often influence parties - and can overwhelm the consideration to make good business decisions. Those other motives include hurt feelings, unresolved passions, the desire to get even and sometimes, just the desire to cause as much pain to the other party as humanly possible. Since even simple divorces can be painful, causing hurt and pain to the other side is relatively easy to accomplish, provided you can financially afford it. And that gets us back to making good business decisions. Rarely is it a good business decision to spend a lot of resources only to inflict pain.

A couple in Brooklyn New York are, and have been, fighting over a luxurious townhome. Out of frustration, some time ago, the judge ordered them to literally divide it in half -- a plywood barrier was constructed so wife lives on one side, and husband on the other. Both parties combined have now spent and estimated $2 million in legal fees. Wife is in bankruptcyand the house is in foreclosure, yet neither party will budge. Additionally, both appear committed to making sure the other never takes sole itle to the house. In fact, the husband said: ‘‘It doesn’t matter if I spend $10 million. She will not live in that house.’’

You can read a longer article on this situation in this weekend's New York Times. For a limited time, the story should be available through this link. The title of the article says it all: Chana and Simon Love Their House, but . . . They Loathe Each Other.

Wednesday, October 01, 2008

Quote of the Day

The grand essentials of happiness are: something to do, something to love, and something to hope for.

- Allan K. Chalmers