The Mazza Law Group, P.C.
2790 W. College Ave., Suite 800
State College, PA 16801 March 10, 2016
(814) 237-6255

Custody & Visitation Rights – Incarcerated Parents

Judges in Pennsylvania are required to consider sixteen factors when deciding the custody schedule that is in the best interest of a child.  These relevant factors are listed in 23 Pa. C.S. §5328(a).  All of the factors “which legitimately have an effect upon the child’s physical, intellectual, moral and spiritual well-being” are said to be important in deciding who should have custody and visitation rights.  The Court must give weighted consideration to those factors which affect the safety of the child.”

What happens when a parent is in prison? In the case of Etter v. Rose, 454 PA.Super. 138 (1996), the Superior Court outlined additional considerations to be evaluated when a parent is incarcerated. They include:  (1) age of the child; (2) distance and hardship to the child in traveling to the visitation site; (3) the type of supervision at the visit;  (4) identification of the person(s) transporting the child and by what means; (5) the effect on the child both physically and emotionally; (6) whether the parent has and does exhibit a genuine interest in the child; and (7) whether reasonable contacts were maintained in the past.

The Pennsylvania Supreme Court, in D.R.C. v. J.A.Z., 612 Pa. 519 (2011) added that the type of crime committed by the parent is relevant to the best interest of the child when deciding custody.  By statute, a parent must report whether they (or any other adult in their household) have committed a criminal offense if they are seeking a custody order.  While it may be a red flag warranting the attention of the Court, a conviction does not automatically prohibit visitation – even if it has resulted in the incarceration of the parent.

Most recently, in the case of M.G. v. L.D.,  decided on February 8, 2017, the Superior Court confirmed that the nature of the criminal conduct that led to the parent’s incarceration should be considered when determining the child’s best interest.  The M.G. v. L.D. court evaluated the incarcerated mother’s crime (shooting the child’s other parent) as well as her other behaviors in deciding whether she should have telephone contact, written correspondence or visitation with her daughter. Even though fundamental parental rights are protected by the First and Fourteenth Amendments to the Constitution, the child’s best interest should be of paramount concern to the Court.  Incarceration, in and of itself, does not prevent a parent from seeing a child, but visitation must be adjusted to account for the unavailability of the parent.   If you want to learn more about custody and visitation rights of parents, whether incarcerated or free, consult with an experienced family law attorney at the Mazza Law Group, P.C.

Same Sex Marriage: Pennsylvania allows dissolution of same sex civil unions under divorce laws

The Pennsylvania Superior Court has recently ruled that same sex civil unions may be dissolved in Pennsylvania under the same laws that apply to married couples.  The significance of the decision in this case, Neyman v. Buckley, is easier to understand from a historical perspective.

In 2000, Vermont became the first state to allow civil unions between couples of the same gender.  Because civil unions did not create the same rights and benefits of the current, more common marriages, the way to terminate the relationship was undefined. In 2009, when the Vermont legislature recognized same sex marriage, they established separate legal methods for dissolving a civil union or divorcing a marital spouse. Since same sex couples can now marry and divorce in any state, it is unclear whether those joined in civil unions must return to Vermont to officially end their relationship.

On June 26, 2013, the U.S. Supreme Court, in the case of U.S. v. Windsor, 133 S. Ct. 2675 (2013), held that it was unconstitutional under the 5th Amendment for the government to issue laws denying individuals the right to marry based on their sexual orientation.  As a result, state courts and legislatures have tried to develop fair and consistent laws about marriage and divorce for same sex couples. In Pennsylvania, Middle District Federal Judge John E. Jones first ruled on May 20, 2014 that the state laws limiting marriage rights to a man and a woman were unconstitutional, in the case of Whitewood v. Wolf. (See our Blog on the Whitewood case)

Most significantly, in 2015, the U.S. Supreme Court ruled in the landmark case of Obergefell v. Hodges, 135 S.Ct. 2584 (2015), that each state must recognize same sex marriages entered in other states.   Since the Supreme Court only referenced “marriage” as the subject of their decisions, the question remained whether individuals ‘wed’ through civil unions rather than marriages may have their unions dissolved in any state jurisdiction.

Recently in Pennsylvania, on December 28, 2016, in the case of Neyman v. Buckley, the Superior Court ruled to that Pennsylvania courts may dissolve civil unions under the existing Divorce Code.  The Court ruled that “a Vermont civil union “creates the functional equivalent of marriage for the purposes of dissolution.”  The trial Court had previously dismissed Freda Neyman’s complaint in divorce against Florence Buckley, saying that Pennsylvania did not have jurisdiction to dissolve a civil union created under Vermont law because the Divorce Code allows divorce only from “bonds of matrimony.”   Considering the legal principle of “comity” on appeal, the Superior Court found instead that the laws of another state should be enforceable “out of deference and mutual respect.”  Since civil unions are treated as the equivalent of marriage, the Court ruled that same sex couples in unions deserve the same divorce options as others, including opposite-sex couples, when their marriage fails.

It remains to be seen how the court will decide issues of property division and support in cases involving both civil unions and subsequent marriages of same sex couples.  If you want to know more about divorce laws and related issues, contact the Mazza Law Group to speak to an experienced family law attorney.

Prenuptial Agreement: How to Prepare

Prenuptial Agreement:  How to prepare for potential divorce before you get married, Part III of a series regarding property division and divorce.

A prenuptial agreement, which is sometimes referred to as a “premarital agreement,” or a “prenup,” may be prepared and executed by two people before they get married in order to protect their interest in property at the end of the marriage. It is difficult for people to think about a potential break-up before the vows are spoken. There are many reasons to consider making a prenuptial agreement just in case the marriage eventually fails.   In recent articles, we described the difference between “ marital property” and “separate property”,  and the factors that lead to the Court’s ultimate decision about what property division may be considered “equitable.” A prenuptial agreement can affect whether property or financial assets of one spouse before the marriage are treated as separate property, and it can influence the way that a divorce decree results in an equitable division of the marital property.

What is a Prenuptial Agreement?

A prenuptial agreement is contract made between individuals who intend to marry, and it goes into effect and is therefore enforceable only if the couple actually marries.  The agreement must be in writing and signed by each future spouse.  The primary goal of entering into a prenuptial agreement is to protect the individual assets of each person in the event that the marriage fails or, in some instances, if one party dies, but there are many other reasons to create and sign this document.  The benefits are not reserved for the wealthy, as tradition may lead you to believe.

For example, a prospective spouse may have a business or personal property that he or she wishes to ensure will remain in the family.  Similarly, prenuptial agreements can be used to protect future gifts or inheritances of the spouse or the inheritance rights of heirs from a statutory spousal interest, although they are not an adequate substitute for a will.  When debts are included in the agreement, it is possible to require that monies owed to creditors by one individual remain the sole responsibility of that spouse, protecting the credit of the spouse who is more financially stable.  If assets are the focus of a prenuptial agreement, the equitable distribution of property at the time of divorce can be simplified, saving time and attorney’s fees and avoiding drawn-out divorce litigation.  It is not a way to resolve child custody or child support matters, and jointly-acquired assets and debts of the marriage must still be divided fairly.

The prenuptial agreement may specifically list certain items of real and personal property, investments and financial assets owned at the time the agreement is signed and provide for who will keep them if the marriage ends in divorce.  A retirement account may be the primary means of savings for one individual, and the future contributions to the account during the marriage may belong to both parties at the time of divorce without a prenuptial agreement preserving the total investment for that individual.  Simply as a contract, the signed document is presumably enforceable unless one person can prove that the agreement was unconscionable, signed under coercion, or agreed to without sufficient disclosure of assets by the other party.

The law in Pennsylvania, set forth at 23 Pa. C.S.A. 3106, requires that a spouse seeking to set aside a premarital agreement has the burden of proving, by clear and convincing evidence, that:

(1) the party did not execute the agreement voluntarily; or

(2) the party, before execution of the agreement:

(i) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
(ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
(iii) did not have an adequate knowledge of the property or financial obligations of the other party.

For these reasons, it is important to make sure that the prenuptial agreement is prepared, disclosed and executed properly to ensure that it effectively serves its purpose at the end of the marriage.  If you are considering having a premarital agreement made, or if you have questions about the equitable division of assets between you and your spouse at the time of divorce, call The Mazza Law Group, P.C. at (814) 237-6255 to speak to an experienced divorce attorney.

Property Settlement in Divorce: What do I deserve?

Part II of a series regarding property settlement in a divorce.

When you divorce in Pennsylvania, the law requires that the property acquired during the marriage will be divided “equitably” between you and your spouse.  In our most recent article about property division, we described what assets should be considered as “marital property” and what may be treated as “separate property” of one spouse.

Once the Court determines whether all of the property owned or possessed by the parties at the time of the divorce belongs to both individuals, the analysis turns to what distribution is “equitable.”  After considering whether anything owned is the separate, non-marital property of one spouse, the Court will decide how to equitably divide the accumulated marital property between the spouses.  “Equitably” means fairly, which is not necessarily going to be equally.

First, judges consider the value of all the real estate, the personal property like cars and household furnishings, and intangible financial assets such as bank accounts, investments and retirement accounts. Then, the Court must weigh the value of this marital property against the remaining debts owed by the parties to come up with a calculation of what the couple owns as marital property and what therefore needs to be divided between the two of them for property settlement.

It is a rather complicated process of accounting that ultimately leads the Court to a decision about how much property each spouse deserves to have awarded to them in the divorce decree.  The next step in property settlement in a divorce is to determine an equitable distribution of property.  According to the Divorce Code at 23 Pa. C.S.A. §3502, eleven (11) relevant factors must be taken into account in awarding property or money to one spouse or the other.

Examples of the relevant factors considered by the Court include: a) the length of the marriage; b) the standard of living established during the marriage; c) the ages, income, education and earning capacity of each party; d) the contribution of one spouse toward the education, training or earning power of the other spouse; and e) whether there are dependent minor children.   All of the factors that the judge looks at when dividing property equitably are listed in detail within the relevant statute, which can be viewed in its entirety at the following link.  23 Pa.C.S.A. 3502

A great deal of evidence and factual circumstances may be presented to the Judge or taken into consideration when developing a proposed order or agreement for equitable distribution.  While you and your spouse may decide to use the default 50-50 division, all of the factors listed in the statute could lead to a conclusion that you deserve to have more than half of the marital property.  The law is detailed, and the relevant facts can be difficult to effectively present without legal assistance.  If you are getting divorced and you need help determining or proving the total of your fair share, call an experienced divorce lawyer at the Mazza Law Group, P.C. for advice and assistance.

In our next article about divorce and property division, we will provide an overview of prenuptial agreements and how they can protect your assets before you get married.

Marital Property: Do I have to share my property with my spouse when we divorce?

[Part 1 of a series regarding marital property, division and divorce]

When you get a divorce in Pennsylvania, the law requires that the property acquired during the marriage will be divided “equitably” between you and your spouse.  According to the Divorce Code, at 23 Pa.C.S.A. §3501(a), marital property is defined as “all property acquired by either party during the marriage and the increase in value of any nonmarital property. . . ”  The Court will presume that everything that was bought or acquired during the marriage belongs to both parties, “regardless of whether title is held individually or by the parties in some form of co-ownership …”   This includes real estate, personal property and intangible assets such as retirement and other investments.

A husband or a wife may ask the Court to treat certain assets as nonmarital, or ‘separate property’ in certain circumstances, including when it is “property acquired prior to marriage or property acquired in exchange for property acquired prior to the marriage.”[1]  Pre-marital assets such as these may be awarded to the individual spouse that owned them before the wedding.  There are other circumstances in which it may be seen as “equitable” or fair for the Court to consider an individual’s property to belong to just one spouse, and when the divorce is final, the parties have “complete freedom” to keep or dispose of their separate real and personal property as they choose.

There are many factors that the Court considers when deciding which assets are “marital property” and which ones are the “separate property” of just one individual.  These factors include, for example, when the property was a gift to one spouse or when the property was obtained by a spouse following the couple’s final separation. Once the Court distinguishes between marital property and separate, individual property, the Judge must decide the value of all assets and the effect of associated debts when dividing the couple’s property in a final divorce decree.

In future articles in this series regarding divorce and property division, we will discuss the methods Courts use to establish an “equitable” division of property and the effect of premarital agreements (also known as antenuptial agreements) on a Court’s discretion.

If you have questions about how the Court may divide the marital and nonmarital property of you and your spouse, or if you need help in understanding how to protect your own assets, you can call an experienced divorce lawyer at the Mazza Law Group, P.C. for advice and assistance.

Marital Property:

[1] 3501.  Definitions.

(a)  General rule.–As used in this chapter, “marital property” means all property acquired by either party during the marriage and the increase in value of any nonmarital property acquired pursuant to paragraphs (1) and (3) as measured and determined under subsection (a.1). However, marital property does not include:

(1)  Property acquired prior to marriage or property acquired in exchange for property acquired prior to the marriage.

(2)  Property excluded by valid agreement of the parties entered into before, during or after the marriage.

(3)  Property acquired by gift, except between spouses, bequest, devise or descent or property acquired in exchange for such property.

(4)  Property acquired after final separation until the date of divorce, except for property acquired in exchange for marital assets.

(5)  Property which a party has sold, granted, conveyed or otherwise disposed of in good faith and for value prior to the date of final separation.

(6)  Veterans’ benefits exempt from attachment, levy or seizure pursuant to the act of September 2, 1958 (Public Law 85-857, 72 Stat. 1229), as amended, except for those benefits received by a veteran where the veteran has waived a portion of his military retirement pay in order to receive veterans’ compensation.

(7)  Property to the extent to which the property has been mortgaged or otherwise encumbered in good faith for value prior to the date of final separation.

(8)  Any payment received as a result of an award or settlement for any cause of action or claim which accrued prior to the marriage or after the date of final separation regardless of when the payment was received.

 

New Divorce Law |victims of domestic violence

Beginning on June 21, 2016, changes to the divorce law will go into effect in Pennsylvania, allowing the Courts to consider convictions for some crimes of violence in deciding when a divorce decree may be issued.  Governor Wolf has signed Amendments to the divorce code into law.

The statute already allows spouses to enter a divorce by consent when ninety (90) days have passed after the filing of a divorce complaint alleging the marriage is irretrievably broken.  Soon the Court will be able to assume that a spouse has consented if they have been convicted of certain crimes against the other spouse.  In effect, it appears that one spouse will be able to submit a proposal for a divorce decree under the theory of “mutual consent,” and the Court can assume that the spouse who has been convicted of a crime of personal injury against the other spouse also consents to the divorce.  Crimes of “personal injury” include homicide, assault, kidnapping, human trafficking, and others, although it is hard to predict how homicide against a spouse will affect the Court’s ability to grant a divorce.  For purposes of this divorce law, “convicted” means “having been found guilty, having entered a plea of guilty, nolo contendere (no contest) or having been accepted into Accelerated Rehabilitative Disposition (ARD) program.

The law will also change to prohibit the Court from requiring the parties to attend counseling if a Protection from Abuse (PFA) order has been entered against one of the parties and the protected spouse objects to counseling.  Divorce counseling will not be ordered if a party is convicted of a crime of personal injury against the other spouse.  These “convictions” and crimes of “personal injury” are defined in the same way as the ones related to consent for a divorce, as described above.

If your marriage is irretrievably broken, or if you have questions about the changes to Pennsylvania divorce law, contact the Mazza Law Group to consult with a family law attorney experienced in matters of divorce and custody.

 

Parental Alienation Awareness Day – 4/25

Parental Alienation, sometimes known as Hostile Aggressive Parenting,  is behavior by a parent which could cause alienation in the relationship between a child and the other parent.

Parental Alienation occurs most often in divorce and custody disputes, where a child may be turned against a parent by a series of actions or statements by the other parent, either subtle or overt, which may disrupt an otherwise loving bond.  These Parental Alienation tactics include speaking negatively about the other parent to or in the presence of the child, interfering with communication and visitation, and sharing inappropriate details of the marriage, divorce, custody or court proceedings.  The child is mentally manipulated or bullied into believing that the other parent is, in effect, the enemy, to be disrespected and avoided.

Whether acting out of ignorance or rage, a parent who puts the child in the middle of a custody dispute with such negative images and descriptions of the other parent takes advantage of the suggestibility and dependency a child.  Parental Alienation is often considered by mental health professionals to be a form of emotional abuse, and children who are exposed to such behaviors for extended periods of time may become confused and depressed.

Custody laws in Pennsylvania are not supportive of Parental Alienation techniques.  23 Pa. C.S. 5328(a)    When deciding the custody schedule that is in the best interest of the child, the Courts are required to consider which parent is more likely to encourage contact with the other parent, and any attempts that may have been made to negatively affect the child’s relationship with the other parent.  Judges need to know whether a parent is willing to cooperate with the other parent and minimize conflict.    Parental Alienation is likely to be negatively construed by the Court when considering these factors and making custody decisions.

Complete this questionnaire if you are interested in learning more about Parental Alienation as it relates to you.     If you are involved in a divorce or custody case and find that you are engaged in or victimized by Parental Alienation behaviors, you may contact the family law attorneys at The Mazza Law Group, P.C. for advice and assistance.

Social Media Divorce “Do”s and “Don’t”s

Social Media And Divorce | State College, PA Family Law Attorney | The Mazza Law Group, P.C.

Each year, more and more Americans are using social media in some capacity. In fact, by 2012, 56% of American had at least one social media profile. We’re connecting with friends, family members, classmates, coworkers, and complete strangers and sharing personal details of our lives on a daily basis. Like many things, social media has its pros and cons. Here are some social media “do”s and “don’t”s to keep in mind when going through a divorce.Continue Reading

Same-Sex Right to Divorce?

In recent years, there has been much debate over same-sex marriage. More specifically, should these unions be recognized by the government and eligible for all the same benefits as “traditional” marriages. The nation has truly been split over this issue. 16 states, including California, Maine, Maryland, Rhode Island, and Illinois, have recognized gay marriages. 33 states, including Pennsylvania, Mississippi, Ohio, Nevada, and Kentucky, have banned gay marriages. This divide has caused some very difficult and interesting family law issues. For example, if you enter into a union with someone of the same sex in California, but relocate to Pennsylvania, how do you get a divorce in a state that doesn’t recognize your marriage in the first place? The Associated Press reported on a real life example of the question above. Lauren Beth Czekala-Chatham married Dana Ann Melacon in San Francisco, California, in 2008, and the two moved to Mississippi a year later. The marriage didn’t last. Now Czekala-Chatham is pursing a divorce in Mississippi—a state that doesn’t recognize the initial union. According to The Associated Press, couples in states that don’t recognize same-sex marriages would typically have to move back to the state where they were initially wed and establish residency in order to get a divorce. Obviously, this option is unappealing and undoable for many. After all, what about work, children, and family? Establishing residency is not an overnight process. In the case of Czekala-Chatham and Melacon, Czekala-Chatham is willing to go back to California in order to get a divorce, but her lawyer has advised against it based on another roadblock: Mississippi wouldn’t recognize the divorce and the marital property would remain tied up. Mississippi isn’t the only state that has banned same-sex marriage and is now encountering same-sex couples seeking a divorce. On Nov. 5, 2013, the Texas Supreme Court heard the case of couples from Austin and Dallas who married in Massachusetts and are now seeking a divorce. The Associated Press reports, “The Austin couple was granted a divorce, but Attorney General Greg Abbott intervened in the Dallas case and won an appeals court decision blocking a divorce.” Whether a couple is comprised of individuals of the opposite sex or the same sex, the inability to get a divorce can affect a range of important matters, including the division of property such as real estate, child custody, health insurance, financial matters, and the ability to remarry. Obviously, marriage is an institution that should not be entered into lightly or on a whim. Couples of any sex are encouraged to think about it very seriously before taking the “leap.” Contact an experienced family law attorney if you have questions about divorce in your state.

In recent years, there has been much debate over same-sex marriage. More specifically, should these unions be recognized by the government and eligible for all the same benefits as “traditional” marriages. The nation has truly been split over this issue. 16 states, including California, Maine, Maryland, Rhode Island, and Illinois, have recognized gay marriages. 33 states, including Pennsylvania, Mississippi, Ohio, Nevada, and Kentucky, have banned gay marriages.

This divide has caused some very difficult and interesting family law issues. For example, if you enter into a union with someone of the same sex in California, but relocate to Pennsylvania, how do you get a divorce in a state that doesn’t recognize your marriage in the first place? Continue Reading

Marriage May Be out of Reach for America’s Working Class

Marriage for working class | State College Divorce Attorney | The Mazza Law Group, P.C.As a family law attorney in State College, Pennsylvania, I often notice trends in marriages, both positive and negative.

One of the most recent trends that caught my attention—one that has been building for some time now—is that marriage may be beyond the reach of many working-class Americans.

According to a recent article from U.S. News & World Report, research is suggesting that insecurity about jobs, finances, and the future pertaining to these career keys is driving a decrease in marriage rates.

Besides preventing marriage in the first place, I also see—from the perspective of a divorce attorney—these issues driving marriages apart.Continue Reading