Divorce – marital settlement agreement

Typically, MSA are incorporated but not merged into the divorce decree itself. This is significant because it limits the ability of a court to later modify the terms of the MSA unless specifically agreed to by the parties. In Rosiecki v. Rosiecki, the court determines that it did not have authority to modify alimony agreed to in the MSA.

Absent fraud, misrepresentation or duress, the parties are bound by the terms in the MSA. The Pennsylvania Superior Court examined the necessary condtions for the finding that duress existed at the time the MSA was signed in Lewis v. Lewis.

CUSTODY – THIRD PARTY RIGHTS

Under Pennsylvania law, parents have a prima facie right to custody of their children. PA courts have repeatedly found that the evidentiary scale is tipped heavily towards a parent in a custody proceeding involving a non-parent. However, this does not prevent a third-party from gaining primary custody when it is determined to be in the child’s best interest. The PA Superior Court recently discussed third-party rights at length in its decision in R.L. v. M.A.

PFA – CUSTODY AND MARITAL PROPERTY

The Pennsylvania Superior Court issued a recent opinion in C.H.L. v. W.D.L. outlining the significant impact that a Protection from Abuse (PFA) order can have on the parties. The court found that the PFA Act allows the trial court to issue temporary custody orders if the court finds that it is necessary to protect a child in the event of an emergency. This can be the case even if the child is not a protected party in the PFA petition. PA law also permits the trial court to award exclusive possession of a property to the plaintiff even if they are not the owner of the home.

CUSTODY – APPEALING AN ORDER OF COURT

The right to appeal a decision by the Court is governed by specific rules in Pennsylvania. The Order being appealed must be a final order. This can be confusing in custody cases where the ability to request a modification is available to the parties. The PA Superior Court recently discussed the timeliness of an appeal in a custody matter in J.P. v. J.S.

DIVORCE – QUALIFIED DOMESTIC RELATIONS ORDER (QDRO)

A Qualified Domestic Relations Order (QDRO) is a domestic relations order of court that by approval of the plan’s administrator recognizes the existence of an alternate payee’s right to an amount of money in the plan. QDRO’s are most common between spouses in a divorce proceeding. In Jago v. Jago, the PA Superior Court addressed the issue of whether QDRO’s are permissible between spouses where a divorce action has not been initiated nor is the couple separated.

ADOPTIONS – POST-ADOPTION CONTACT AGREEMENT (PACA)

It is always important to understand the long-term ramifications of entering into a legally binding contract or agreement. Post-Adoption Contact Agreements (PACA) allow a parent terminating their parental rights to play an agreed upon role in the child’s life after adoption. The PA Superior Court recently discussed enforceability versus modification of a PACA in In Re: Adoption of B.G.W.

CUSTODY – MEDICAL MARIJUANA

The Pennsylvania Superior Court recently addressed the Medical Marijuana Act’s implication on custody proceedings. In H.R. v. C.P., the court found that while the Act prevents the court from issuing an opinion based strictly a party in compliance with the Act, it does not preclude the court from making findings concerning the effects of marijuana on a parent’s ability to care for a child.

SUPPORT – PATERNITY BY ESTOPPEL

Divorce – Decree

Parties are limited in their ability to open or vacate a divorce decree. 23 Pa.C.S.A. 3332 sets forth clear requirements for the court’s authority. The Superior Court recently reexamined this section of the Divorce Code in Bardine v. Bardine.

Custody – Grandparents (Standing)

The legal concept of standing addresses what parties are permitted to bring a legal action. 2018 Act 21 in Pennsylvania seeks to expand the ability of Grandparents to gain the necessary standing to bring a custody action. In G.A.P. v. J.M.W., the Superior Court of Pennsylvania found that regardless of the custody status of the child, grandparents can achieve standing if the child is substantially at risk due to the parents.

Custody – Shared Custody (Cooperation)

In 1998, the Superior Court of Pennsylvania established the standard prerequisites the trial court must use in determining that a shared physical custody arrangement is in the best interest of a child. 23 Pa.C.S.A. 5328(a), setting forth the factors to be used in determining custody, went into effect in January 2011. The Superior Court recently determined that the trial court no longer needs to establish a prerequisite to grant shared custody. In P.J.P. v. M.M., the Court found that the parties ability to cooperate, while a factor to consider under the 5328(a) analysis, is no longer required to order a shared custody arrangement.

Evidence – Social Media

The introduction of social media posts and/or messages in court is a common practice in all areas of the law today. This is especially true in family law matters such as divorce or custody hearings. The Superior Court of Pennsylvania recently elaborated on the standard for the introduction of social media materials into the evidence.  In Comm. v. Mangel, the Court found that direct or circumstantial evidence must be presented that the party authored the messages beyond it simply being an account under their name.

Divorce – Alimony

Pennsylvania courts have long allowed the financial circumstances following a party’s retirement as a basis for the modification of an alimony award. However, the Superior Court recently refused to extend this modification to a future, not yet determined retirement date. In Speaker v. Speaker, the Court found that modification of alimony was premature when Husband failed to produce evidence of an unfavorable change in his current income levels.

Custody – Jurisdiction

Determining appropriate jurisdiction is an important aspect of a child custody action. This is particularly true when a party seeks to modify an existing custody order of court. It is common for individuals to move over the course of their children’s lives. The Superior Court of Pennsylvania recently reaffirmed the idea that Pennsylvania courts alone cannot determine that another state no longer has jurisdiction.

Divorce – Settlement Agreements

It is common for Marital Settlement Agreements (MSA) to include language regarding financial obligations to the divorcing parties’ children. A recent Superior Court of Pennsylvania case found that a child may have standing to enforce a provision in the MSA if they are determined to be a third-party beneficiary. In Weber v. Weber, the court granted standing to a child seeking to enforce a clause in the MSA to split his undergraduate education expenses.

Estate Planning – Heir Omission

A common question in estate planning is the consequence of not naming an heir in the will. Knowledge of the heir is an essential consideration of the court.  The Pennsylvania Superior Court recently decided that Section 2507 of the PEF Code does not permit recovery for a child not named in the will when the child was unknown at the time of the execution of the will.

Divorce – Equitable Distribution

The Superior Court of PA reaffirmed the idea that either party in a divorce can raise the issue of equitable distribution. In Jackson v.  Jackson, the court found that equitable distribution is not waived when the other spouse files the divorce action raising the claim.

Adoption – Parental Rights

The Superior Court of Pennsylvania recently found that Pennsylvania law does not require a parent to be present in order for the termination of their parental rights. Instead, the court found that appropriate notice is the requirement. In the case of In Interest of D.F., the court also outlined several of the necessary conditions for an involuntary terminationof parental rights to take place.

Divorce – Alimony

The purpose of alimony is described by the Pennsylvania courts not as a punishment or reward, but instead, it is to ensure that the reasonable needs of the receiving party are met. The Superior Court of Pennsylvania recently rule in Leicht v. Leicht that a trial court awarding alimony on indefinitely was not an abuse of discretion.

Divorce – Mortgage Foreclosure

In U.S. Bank Nat’l Assn. v. Watters, the Superior Court of Pennsylvania addressed the concept of a “real owner” as it pertains to the rules governing mortgage foreclosures. The court declined to extent the concept to a spouse whose only interest in the property is a marital interest.

Custody – In loco parentis

The Pennsylvania courts have long acknowledged the legal concept of in loco parentis to allow third party individuals to gain standing in custody actions. The Superior Court of Pennsylvania recently issued an opinion in K.W. v. S.L. discussing several key concepts in determining whether in loco parentis applies.

Real Estate – Adverse Possession

The legal concept of adverse possession allows individuals to claim a right to property. A recent Superior Court of Pennsylvania decision found that periods in which the government owns property does not reset the clock for determining adverse possession. Instead, government possession tolls the statutory clock.

The decision can be found here: Weible v. Wells

Business – Corporate Structure

On November 21, 2016, Pennsylvania Governor Tom Wolf signed into law Act 170. The bill’s intention is to modernize PA law as it relates to many corporate entities. The new law will impact new entities established after February 21, 2017. The law will begin to impact existing businesses on April 1, 2017.

You can find more information about the law here: House Bill 1398

Please contact our office to further discuss how these changes may be applicable to your business.

Support – Dependency

The Superior Court of Pennsylvania continues to support the general rule that the duty to pay child support ends when the child turns eighteen or graudates from high school.

A recent opinion outlining this can be found here: Somerset County Children and Youth Services v. H.B.R.

Divorce – Equitable Distribution

Reviewing the appropriate manner to value a martial residence purchased by one party prior to the marriage, the Pennsylvania Superior Court stated that the other spouse is entitled to a share of the increase in value of the home during the marriage.

The Court’s opinion can be found here: Mundy v. Mundy

Divorce – Waiting Period Shortened

On October 7, 2016, Pennsylvania Governor Tom Wolf signed into law Domestic Relations 2016 Act 102. The Act reduces the waiting period to one year following the date of separation in a no-fault divorce.

You can find more information about the bill here: House Bill 380

Please contact our office to further discuss how this change in the law may be applicable to you.

Custody – Grandparents Rights

The Supreme Court of PA found that standing in custody actions filed by grandparents based exclusively on the separation of the parents violates due process.

The Court’s opinion and a summary of the case can be found here: D.P. v. G.J.P.

Custody – Medical Marijuana

Pennsylvania Governor Tom Wolf signed into law 2016 Act 16 in April. The Act legalizes the use of medical marijuana in Pennsylvania. Section 2103(c) of the Act provides that an individual’s certificate to use medical marijuana shall not itself be considered by a court in a custody proceeding.

Expungement – Sealing of Criminal Records

The Pennsylvania Legislature passed Act 5 of 2016 regarding the sealing of criminal records. The Act is primarily an effort to reduce the lasting impact that a minor non-violent criminal conviction can have on Pennsylvania residents.