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

Cohabitation Agreement – Avoiding the Vows

Couples often have lengthy periods of cohabitation without making plans to marry. When individuals anticipate avoiding the vows of marriage in favor of living together with a less formal relationship, it is still possible to clarify the terms by which financial responsibilities will be shared with a cohabitation agreement.   In contrast, individuals with a clear plan to marry often enter into a prenuptial agreement about preserving the assets that they acquire prior to marriage, but a prenuptial agreement does not take effect until a wedding occurs.You can read more about prenuptial agreements and their effect on equitable distribution at the time of divorce here:

When partners desire instead to live together in a comparatively informal relationship, it may still benefit them to outline the terms of their living arrangement with a contract in the form of a cohabitation agreement, designed to determine their respective rights to the property of the other.  In this agreement, individuals may promise to share income, debts, and property, or, in the alternative, a cohabitation agreement may describe a goal of maintaining separate property, so that their acquired assets while they are living together are never considered to legally belong to both partners.  “Separate property” is a term often used by courts in divorce cases to decide what may be considered an equitable distribution of marital assets.  Without a cohabitation agreement and without a prenuptial agreement, couples who live together for a considerable length of time prior to marriage, are most often considered by the courts to have acquired joint marital assets from the date of the marriage to the date of the separation. You can learn more about separate property and equitable division here:

Since Pennsylvania laws do not describe the effect that a long period of cohabitation may have on equitable distribution, it is hard to speculate whether cohabitation would be a relevant factor that is taken into consideration.   In New Hampshire, the Supreme Court recently determined that assets that were accumulated prior to marriage may belong to both parties and divided as part of their divorce decree.  In the case of In the Matter of Deborah Munson and Coralee Bell, the New Hampshire Court added the period of cohabitation to determine that the marriage could be considered “long-term” for purposes of determining a fair division of property and an award of alimony.  The Court ruled that, in New Hampshire premarital cohabitation is “a factor that the court may consider in divorce proceedings when determining whether to depart from the presumption that an equal division is an equitable distribution of property.”

In Pennsylvania, Courts follow a similar presumption that ‘equal’ is ‘equitable’ in divorce. While the statute regarding equitable distribution, 23 Pa. C.S.A, 3501 allows the court to consider “all relevant factors,” it provides a list of what constitutes a relevant factor. This includes the length of the marriage.  The law specifically name the “length” or “duration” of the marriage, but not the amount of time that the parties have lived together.    The date of the actual wedding vows to the date of the separation is used to measure what is called marital property.

The Munson and Beal case was unique because the parties were a same-sex couple who were not permitted by law to enter into a traditional marriage during some of their cohabitation.  The Supreme Court clarified that the consideration of a period of cohabitation would not be restricted based on sexual orientation. The Court said “We further note that premarital cohabitation is not unique to same-sex couples . . . . Our holding that the court may consider premarital cohabitation applies to all divorce proceedings.”  Other states’ higher Courts have considered the same issue with varying results.

It appears to be undetermined whether a cohabitation agreement can affect the decisions, but it is worth considering as a way to secure the intentions of the couple living together.  A premarital agreement written and signed properly will the initial acquisition of shared property for those who marry.

If you have questions about cohabitation agreements, premarital agreements or divorce and equitable distribution, contact The Mazza Law Group, P.C. to talk to an experienced family law attorney for information and advice.

Surrogacy Law:  How important is the surrogate contract?

Modern advances in scientific means of assisted reproduction (surrogate) have allowed prospective, wanna-be-parents to have children in new ways that we would not have imagined when we were children ourselves, but has the law kept up with the progress?  In the recent case of In Re Baby S., 2015 PA Super 244, Pennsylvania Superior Court has recently considered whether a surrogate “gestational carrier” contract was enforceable against a prospective mother who changed her mind about raising a child when it became time to put her name on the birth certificate.

The “Intended Mother” and her husband, the “Intended Father” had signed a surrogacy contract through a reproduction-assistance company with a surrogate “Gestational Carrier,” who would carry a child developed from a donated egg and the sperm of Intended Father.  The contract for ovum donation and the gestational carrier contract were clear that, once the carrier was confirmed to be pregnant, the agreement could not be terminated.  The Intended Parents’ names were to be entered on the child’s birth certificate, and the surrogate mother was not to have any parental or custodial rights or obligations.  This provision would typically be used to enforce the Intended Parents’ rights to raise the baby as their own, without interference from the gestational carrier.

The prospective parents of Baby S. were having marital difficulties by the time the surrogate, gestational carrier was due to give birth, so a legal dispute ensued about whether the woman who contracted to carry a baby to term for the Intended Parents could ultimately be held legally and financially responsible as the birth mother.   Intended Mother claimed that it was a violation of public policy to enforce the contract for motherhood to which she had agreed.  The “public policy” argument essentially means that the Courts may not force individuals to carry out an agreement that is contrary to the overwhelming majority of public opinion regarding an issue of “public health, safety, morals or welfare.”

Since actions and agreements are presumed to be legal if the legislature has not written a law stating otherwise, the Courts are unlikely to void a contract as against public policy.  According to the Court’s decision regarding Baby S., “(t)he standard for deciding a case on strict public policy grounds in unquestionably high. . . ,”  and the absence of  a specific statute regarding the validity of surrogacy agreements does not defeat the contract in the case.  Because the agreement unambiguously stated that Intended Parents would be the legal parents and the gestational carrier would have no maternal rights, there was no basis for the Court to allow the Intended Mother to escape responsibility.  Father was awarded physical custody, and since Intended Mother breached the agreement by refusing to have her name on the birth certificate, she was ordered to pay the legal fees of the Gestational Carrier as well as child support to the father raising the child.

Most often, prospective parents who have invested emotionally and financially in developing surrogacy contracts are committed to raising a child for life, so there are more legal cases initiated by surrogate mothers who have changed their minds and seek to change their surrogate role to the status of a custodial parent. For example, in the 2006 Pennsylvania Superior Court case of J.F. v. D.B., J.F. v. D.B., a gestational carrier sought custody of triplets after their birth, but the Court ultimately dismissed her claim and awarded custody to the father, who was a biological parent.  The Court “declined to rule on the validity of the surrogacy contract,” based in part on the carrier’s choice to rely on the argument that the surrogacy itself made her the “legal mother.”  Accordingly, the Court also stated, “we decline to rule on the propriety of surrogacy contracts generally.  That is a task for our legislators.”   The Superior Court ultimately denied the gestational mother’s claim, finding that the surrogate did not have standing, the legal right to seek custody or adoption of a child.  The biological ties are binding, and both “Intended Parents” and potential surrogate gestational carriers, should have a clear and valid surrogate contract and legal advice about their parenting choices before asserting or relinquishing parental rights.

Without legislative action or Court guidance beyond the assurance that certain surrogacy agreements do not violate ‘public policy,’ solid, legal contracts with a gestational carrier and necessary donors are crucial steps in preparing for surrogate parenthood.  If you have questions about contracts, surrogacy, custody or other family law issues, contact the Mazza Law Group, P.C. for consultation and legal advice.

Custody Agreement – Be Careful What you Bargain For

A self-imposed financial penalty in a custody agreement was recently upheld by the Superior Court against a father who had agreed to pay damages for seeking a modification of his own child custody schedule.  In the matter of Huss v. Weaver, 2016 Pa. Super. 24, the Court held that the father’s custody agreement to pay $10,000 to the mother each time he seeks a custodial modification was enforceable, rejecting the father’s argument that the stipulation violates public policy.

In general, public policy is used by the Courts to reinforce social expectations and societal norms that reflect morality. In this case, the father argued that it was inappropriate to require an individual to pay damages to request a change in custody agreement orders because it is contrary to the normal expectations of the public. The father, who is a lawyer, argued that the $10,000 penalty to which he had agreed violated public policy against bargaining away custody or visitation rights.

Ability to Challenge Custody Agreement

The Court found that, unlike child support cases, the parents can enter a custody agreement that may affect one party’s ability to challenge or modify the custodial arrangement. In contrast, the Court has previously held that children have the right to be supported, so that any efforts by parents to dispose of the obligation to pay support by agreement with the other parent should be struck down as against public policy.  When it comes to custodial rights, the same public policy is not invoked, according to the decision.

The ruling relates only to the interpretation of the parent’s contract, so it does not otherwise affect the Court’s treatment of the best interests of children when considering the modification request.  The father’s obligation to pay liquidated damages to the mother for the necessity of addressing modification requests is enforceable. Contact our family law attorneys to review your custody agreement before you sign.

DO YOU HAVE CUSTODY OF YOUR GRANDCHILD?

Many Grandparents take over the role of custodians when their sons and daughters are incapable of taking care of their own children.  Even if it is only temporary, there are legal ways to ensure that your grandchildren are safe and secure in your care when you are their primary caretaker.

What do you need to know if you have custody of your Grandchild? You have a right to seek court orders awarding you custody or guardianship a child or children living in your home.  Even if their parents are willing to let your grandchildren live in your home, it may be necessary to have a legal document to prove that you are responsible for their primary care in order to take them to the doctor or enroll them in school or arrange for daycare while you are working.

Custody of your Grandchild

If you plan to ask the court to ask for the legal right to keep custody of your grandchildren, you need to have “standing” – a legal reason – giving you the right to file a petition for custody orders.  Standing to request custody orders can exist in several ways, the first of which is when a grandparent is “in loco parentis” to the child – a legal term indicating that the grandparent is acting as a parent with the consent of the parents.

If you are not “in loco parentis,” you must prove that (1)  the relationship began with the parents’ consent or a court order, and (2) you are willing to assume the responsibility for the child, and one of the following situations exist: either (a) the child is determined to be a dependent child; or (b) the child is at substantial risk due to parental abuse or neglect, drug or alcohol abuse or incapacity, or (c) for at least 12 consecutive months, the child has resided with the grandparent and has been removed by the parent.  See 23 Pa.C.S. 5324 If your reason for seeking custody is (c), then you have 6 months from the child’s removal to file for custody.  Don’t wait for the end of the six months, act now if you think it is in the best interests of the child to be with you.

Even if the parents agree that you will be the primary custodian of their child, it still may benefit you and your grandchild to get a court order that establishes your legal rights and describes the parents’ ongoing involvement, if any. If you would like to formalize custody of your grandchildren, a lawyer can help to understand the laws and rules that give you standing to seek a court order confirming your role.  If you want to obtain or maintain custody of your grandchildren, call the experienced family lawyers at The Mazza Law Group, P.C. for advice and assistance.  We have helped literally hundreds of families work thru the process of raising children and grandchildren in non-traditional ways.

Pennsylvania Federal court declares same-sex marriage ban to be unconstitutional

Same sex marriage wedding cakeOn May 20, 2014, the Honorable John E. Jones III, a U.S. Federal District Court Judge in Pennsylvania, ruled that the statutory ban on same-sex marriage was unconstitutional.

Since 1996, Pennsylvania law prevented two people of the same sex from marrying and prohibited the recognition of civil unions and same-sex marriages performed in other states. The Pennsylvania legislature had previously declared a public policy to recognize only a marriage between “one man and one woman,” and the statute went as far as to proclaim same-sex marriages in other jurisdictions to be “void.”

Gay rights advocates challenged the Pennsylvania law as a violation of the constitutional rights of equal protection and due process, protesting greater income and inheritance taxes, limited Social Security benefits, and health care access rights that were more restrictive than those available to unmarried individuals.

As support for their position, the plaintiffs relied on the 2013 U.S. Supreme Court ruling in United States v. Windsor, seeking to strike down the law as discriminatory.

The U.S. Supreme Court  granted full federal recognition to married same-sex couples in the Windsor decision which found the Defense of Marriage Act (DOMA) to be an unconstitutional violation of equal protection of the law.

The decision allowed married gay couples to enjoy the same federal benefits as their heterosexual counterparts by overruling DOMA’s restrictions.Continue Reading

Does an Involuntary Google+ Invite Violate a Restraining Order?

Google+ Invite Violates Restraining Order | State College, PA Family Law Attorney The Mazza Law Group, P.C.

In life, relationships can turn sour. Sometimes a break-up is “mutual,” while some splits seem to shatter the lives of those involved.

In some circumstances, a restraining order may be necessary after a rocky end to a relationship, especially if one person can’t seem to let go.

For one man, however, the restraining order was taken to a new level—a “social” level, you might say—after he was jailed for sending his ex-girlfriend an email invitation to join Google+.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