Family Law

Pennsylvania Law provides criminal and civil remedies for abuse. The Protection from Abuse Act allows Judges to enter orders against abusers which can be effective for up to 18 months (to 36 months effective 5/9/06). The abuser can be ordered to stop abusing and/or threatening the victim and to stop contacting and/or following the victim. The abuser can also be evicted from the residence shared with the abused party and can be ordered to surrender his or her weapons. The victim can obtain a Temporary Order of Custody and/or Support if appropriate as part of the Protection from Abuse (PFA) Order.

Also, where the parties are involved in a Divorce Action, a Judge can award exclusive possession of the marital residence to an abused spouse. A Judge can also enter orders preventing one party from disposing of marital assets, etc., until a final order is entered equitably dividing the marital property.

Anyone who believes that she or he needs this kind of protection, for themselves or their assets, should call a family law or domestic attorney, or the Lawyers’ Reference Service of the Delaware County Bar Association (610-566-6625), or the Domestic Abuse Project (610-565-6272), or your local police, or one of the other numbers listed in the section on Elder Abuse and Neglect which appears elsewhere in this Handbook.

Marriage

As of this writing, Pennsylvania Law defines marriage as a civil contract by which one man and one woman take each other for husband and wife. A same-sex marriage entered into validly in another state will not be recognized in Pennsylvania. Since January 1, 2005, when common law marriage was abolished in Pennsylvania (see below), the only way for a couple to marry in Pennsylvania is to apply for a marriage license at least three days before the ceremony (with very few exceptions). There is no restriction based upon advanced age. There are restrictions on the issuance of a marriage license to people who are related to each other or to persons who are under the influence of alcohol or drugs. Also, a marriage license will not be issued to a person who is of unsound mind or who is under guardianship as a person of unsound mind unless a Judge decides that it is for the best interest of the applicant and the general public to issue the license.

Until recently, Pennsylvania was one of a small number of states permitting the creation of a “common law marriage.” In order to enter a common law marriage, the parties needed to exchange vows in the present tense with the specific purpose of creating the legal relationship of husband and wife. We now have a law that provides that no “common law marriage” entered into January 1, 2005 or later will be recognized as valid. A common law marriage entered into before January 1, 2005 may be found to be valid, if all the requirements for a common law marriage can be proven. A person who claims benefits based upon the existence of a common law marriage should consult a family law attorney for guidance.

Marriage – Rights and Responsibilities

Marriage is a statutorily-created legal relationship. From the legal relationship flow certain rights and responsibilities. For example, a spouse has the right to support and has the right to a share of his or her spouse’s estate. Marriage presents a couple with the opportunity for certain tax advantages and options with regard to Social Security benefits. (These concepts are treated in more detail elsewhere in this Handbook.) Upon divorce, a spouse has the right to have a court equitably divide the couple’s marital property and he or she may qualify for an award of ongoing support or alimony. On the other hand, one spouse owes a duty to provide medical necessities for his or her spouse and may be required to contribute to hospital or nursing home costs incurred by his or her spouse. (See the sections on Medicaid and nursing home costs.)

Spouses are NOT automatically AGENTS for one another. Therefore, each spouse should have a durable financial power of attorney and a durable medical power of attorney, granting power to his or her spouse to handle financial matters and to make medical decisions in the event of incapacity. The power of attorney should also allow the agent to obtain medical information under HIPPA. One or more alternate agents should be named as well.

Planning for Subsequent Marriages

Divorced or widowed persons should be aware of the consequences of a second marriage. For example, a party who remarries may forfeit the right to collect Social Security benefits on the account of the prior spouse. (See the section on Social Security elsewhere in this Handbook.) Your second spouse also has the right to a share of the marital property if you divorce as well as the right to a portion of your estate on your death.

In the event of a divorce, your spouse may be entitled to a substantial share of the property that you acquired together during the marriage (the “marital property”) and may also be entitled to support or alimony during and even after the divorce. If one or both parties intend to leave their assets to their respective children rather than to each other, and/or if they wish to prevent the new spouse from claiming support or alimony, they should enter into a “Prenuptial Agreement” or “Antenuptial Agreement” prior to the marriage, or a Marital Agreement during the marriage, and should prepare their Wills and other estate planning documents accordingly. Similarly, if either or both parties wish to keep certain property to themselves, without adding it to the “marital property,” they should enter into an Agreement to that effect and they should keep that property separate rather than commingling it with the marital property. (Even so, the increase in value of the separate property will be considered marital property.)

“Marital property,” generally speaking, means all property acquired by either party during the marriage and prior to the final separation. Some property specifically is not considered to be “marital property,” for example, property acquired by gift or inheritance (unless it is gifted to the marriage or commingled with the marital property in some manner). There are other exclusions. If this is an issue for you, you should consult with a qualified attorney.

Marriage also vests substantial rights in the new spouse in the event of the death of a party. If a party who has remarried dies without a Will, the subsequent spouse is entitled to an intestate share of the party’s estate. If a party who has remarried dies having written a Will, even if the Will makes no, or minimal, provision for the subsequent spouse, the subsequent spouse may receive an “elective share” of the party’s estate. The size of the surviving spouse’s intestate or elective share depends upon the identity and degree of kinship of the decedent’s next of kin.

For these reasons, people who intend to marry or remarry should be aware of, and should plan for, the legal consequences of the marriage. Planning is especially important people with children from prior marriages or relationships and assets or income to be left to those children, people who are involved in a family business or closely-held corporation and people who anticipate future receipt of substantial assets or income.

A party for whom remarriage may have unintended consequences should consult a qualified attorney in order to be fully apprised of, and to plan for, the consequences of the marriage. Such a professional can advise you about the possible use of Prenuptial Agreements, Trusts, and other means which will preserve the rights of the party and his or her intended beneficiaries to the party’s assets and income. Even during the marriage, agreements and trusts can be used to help preserve your income and assets and direct them as you intend.

Grandparents’ and Great-Grandparents’ Custody Rights

In many family situations, grandparents and great-grandparents see their minor grandchildren often, along with their parents, and there is no legal issue and no need for court involvement. However, when there is a dispute between parent and grandparent, the parent is presumed to have the right to custody of their child. If the parent and grandparent cannot work out an informal agreement, it may be necessary for the grandparent to petition the Court for visitation (the right to see the child but not take him/her away from the parent’s control) or partial custody (the right to take the child away from the parent for a specific period of time). The grandparent bears a heavy burden of persuasion in these cases.

In three situations, Pennsylvania law specifically gives grandparents partial custody and visitation rights: first, when a parent of the child is deceased; secondly, when the parents are divorced/divorcing, or separated for six months; and thirdly, when the grandchild has resided with the grandparent for 12 months or more and then is removed by the parent. (These provisions do not apply where the child has been adopted by a third party.) In each case, the grandparent must prove that the visitation or custody rights are in the best interest of the child and would not interfere with the parent-child relationship.

Remember that issues of custody and visitation of children are always governed by the “best interests of the child” standard and not by the interests or desires of the parents or grandparents. In these cases, the court will also be looking at the amount and type of contact the grandparent had with the child before filing the petition. For example, if you are a grandparent petitioning for partial custody, it is more helpful to show that you helped the child with homework or took him or her to the doctor or dentist, than to show that you took him or her to the movies or the zoo. Another key factor is the grandparent’s attitude toward the parent(s); courts will not look kindly on a grandparent who denigrates the parent or tries to interfere with the child’s relationship with his or her parent.

As the amount of time requested by the grandparent moves further from a visit to partial custody, the reasons offered in support of the grandparents’ petition must become correspondingly more convincing. In the case of a grandparent versus a third party such as Children and Youth Services, however, grandparents have a better chance of prevailing.

In other situations, a grandparent has standing to petition for physical and legal custody of a grandchild if it is in the best interest of the child NOT to be in the custody of either parent (e.g., because of parental abuse, neglect, drug or alcohol abuse or mental illness) AND it is in the best interest of the child to be in the custody of the grandparent. To establish standing to bring such a petition, the petitioner must be a grandparent: (1) who has genuine care and concern for the child; (2) whose relationship with the child began with the consent of a parent of the child or by order of court; and (3) who for 12 months has assumed the role and responsibilities of the child’s parent, providing for the physical, emotional and societal needs of the child.

In any contested custody/visitation case, it is wise for the grandparent(s) to be represented by experienced counsel to guide them through the family court process.