Making The Divorce Process Easier For Victims Of Spousal Abuse

Pennsylvania allows parties to a divorce action to seek both no-fault and fault divorces. While fault remains available, the overwhelming majority of divorces are granted under no-fault grounds. The statutory framework for no-fault grounds for divorce are contained in 23 Pa.C.S. §3301(c) – mutual consent and §3301(d) – 2 year separation.

Grounds for divorce can be established under §3301(c) “where it is alleged that the marriage is irretrievably broken and 90 days have elapsed from the date of commencement of the 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.”

On April 21, 2016, Governor Wolf signed House Bill 12 of 2015 which is designed to accelerate the establishment of grounds for divorce under §3301(c) in cases where one spouse has committed a “personal injury crime” against the other spouse. “Personal injury crimes” include the following: criminal homicide, assault, kidnapping, human trafficking, sexual offense, arson, robbery, victim/witness intimidation, homicide by vehicle and accident causing death or personal injury to the other spouse. These amendments will become law on or about June 20, 2016.

Essentially, the enactment of this legislation allows the victim spouse to establish divorce grounds under §3301(c) based on the “presumed” consent from the convicted spouse, whether they sign an affidavit or not. It is important to note that a spouse must be convicted of one of the enumerated offenses before their consent will be “presumed.”

While the legislation is certainly well intended and meant to assist those spouses who are the unfortunate victims of abuse and “personal injury crimes,” it is questionable as to whether it will achieve its intended result. For example, if the crime results in death to the victim spouse, a divorce at that point seems irrelevant. In addition, with the length of time criminal proceedings take for some of the crimes enumerated above, it is possible that grounds may be established by other means, especially in light of pending litigation which would lower the statutorily required waiting time to establish grounds under §3301(d) from two years to one year. Finally, there are fault grounds which would deal with these types of circumstances, although there are a whole other slew of additional issues created when a party seeks a fault based divorce.

While the question of how beneficial the “presumed consent” portion of this legislation will be is still in the air, there is an important additional aspect of the amendments that cannot be overlooked. Victim spouses, who have been granted an order for protection from abuse or are the victim of a “personal injury crime,” who might otherwise be subjected to attend three marital counseling sessions at the request of their spouse, will no longer be required to do so because of the amendments

It will be interesting to see how this law will ultimately be interpreted and its impact to those subjected to abuse or “personal injury crimes.”

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Posted in Divorce

Truths and Myths About Divorce Mediation

shutterstock_134380532When clients visit my office for an initial consultation about their impending divorce, they invariably ask about the benefits and pitfalls of mediation.  Over the last several years, the use of alternate dispute resolution in divorce and other litigation matters has increased in popularity.  This is due to the widespread belief that staying out of Court is a cheaper and faster way to resolve most legal disputes.  While this is generally true and while mediation may help parties reach that goal, it is not the answer in all situations.  Let’s examine some of the myths and truths about mediation:

1)      Mediation Will Save Me Money – While it is true that the cost of bringing a divorce case to trial can be quite expensive, attending mediation is not always a cheaper alternative.  In a mediation setting, the parties pay a mediator a designated hourly rate.  Depending upon the number of sessions that the parties meet with the mediator and hours that the mediator spends reviewing their case and/or drafting a settlement agreement will determine the ultimate cost.  In addition, parties are also advised to hire their own independent lawyers to review any proposed agreement arising out of mediation on each party’s behalf which is another cost.  Moreover, if the mediation proves unsuccessful, the parties are back at square one, facing possible litigation, after having already spent the cost of mediation;

2)      Mediation Will Get My Divorce Resolved Faster – Many clients believe that mediation is the key to a quick resolution of their divorce.  This is certainly true if both parties are amicable, there is minimal property to divide and both are like-minded in what constitutes a fair division of that property.  In fact, if these factors exist, mediation is not even necessary – the parties can resolve their issues directly with the limited assistance of counsel.  In most instances, however, parties are not like-minded (which is why they are divorcing in the first place), do not have minimal property issues and are not amicable.  This is not to say that most divorces will not resolve – they usually do by mediation or by settlement at some other point – just that going to mediation alone, will not in itself speed up the process and in some instances can slow it down if it proves unsuccessful;

3)      Mediation Is A Less Adversarial Way To Get Divorced – The idea that mediation is a gentler, less adversarial way of getting divorced is true.  That is, if it works.  Again, if both parties are committed to the mediation process and determined to resolve their divorce in this manner, they have a greater chance of success than those who believe that mediation alone will make them gentler and less adversarial. Those who think that mediation in and of itself will make the differences that caused the breakdown of the marriage magically disappear and will allow the parties to agree to a distribution of assets for the greater good of the family are often sorely disappointed.  Mediation by its nature requires parties to agree in order to work and if they are not able to agree, then mediation is not the answer;

4)      The Mediator Replaces The Judge– Some clients have the false notion that the mediator essentially operates as a private judge and will make decisions for them to resolve their divorce.  This is not true.  Binding arbitration is a type of alternate dispute resolution where parties agree to submit their case to the arbitrator to decide their issues.  It is not the same as mediation.  In mediation, the mediator acts as a facilitator to help parties reach an agreement.  The mediator does not “decide” the case for the parties, and in fact, should remain neutral in helping parties reach agreement.  The potential problem is that if parties do not agree, the mediation does not succeed.

5)      Mediation Helped My Friend So It Will Help Me – One of the most difficult questions that clients pose is why some tool like mediation could help a friend, relative, etc. and not help them.  Clearly, it is understandable how someone would want a simple solution to their divorce that worked for someone else they know.  However, as I routinely explain to clients, each divorce case is unique and must be evaluated on its individual merits.  There is no one-size-fits-all resolution to divorce cases.  Parties are wise to review their options with counsel and take the path that seems right for them – even though it may differ from that of their friend, neighbor or relative.

It is certainly beneficial that clients have a wide variety of choices in trying to resolve their divorce, mediation being one of them.  This takes pressure off the over-burdened Court system and gives parties a modicum of control in a situation where they often feel so out-of-control.  However, before embarking on the mediation path, it is critical that parties fully understand the process and the chances of success in their particular situation.  Hopefully the tips above will at least give parties some issues to consider before moving forward.  What is most important to keep in mind is that most divorces do resolve at some point with or without mediation.  Getting wise counsel in helping to navigate the system and decide what path right for you in your matter is most critical in saving time, money and aggravation

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Posted in Divorce

What Can Be Learned From Madonna’s Custody Battle

Pop icon Madonna is facing a difficult battle concerning custody of her 15 year-old son, Rocco.  While the divorce agreement she entered into with Guy Ritchie about eight years ago, awarded her custody of Rocco, it appears that he now prefers to remain with his Father in London.  Recently, he even blocked Madonna from his Instagram account while allowing his Father access.   This made headline news.

What Madonna is facing is difficult for any parent to imagine.  But this situation is not something only celebrities face.  In fact, as a family lawyer, I see that in many instances when children become teenagers, custody arrangements must also be modified.  And when clients come to me looking to initiate a custody action concerning teenagers, I try to deter them mostly because even if a Court rules in their favor, it is nearly impossible to make a teenager do what he or she doesn’t want to do.

Now, when we discuss the factors determining custody, we always look to the best interest of the children.  And the child’s preference usually plays only a small role in making that determination.  In fact, most Courts do not even want to involve the child in the custody process when they are younger.  However, when a child becomes a teenager, his or her preference for where he or she wants to live and spend their time carries much more weight.  Certainly, a Court will encourage the teen to spend as much time as possible with each parent because that is usually deemed to be what is in their best interests.  Nonetheless, I have personally seen many situations like Madonna’s where a child can be primarily raised by one parent and when he or she becomes a teen, they want to live with the other parent.

There are many reasons why a teen may decide to live with one parent over the other.  First, it may be that they prefer to be with the parent of the same gender who can more easily identify with the trial and tribulations of becoming an adult man or woman.  Second, it may be that the rules at one parent’s home are more lax than at the other’s home.  It may be that the teen is trying to play one parent against the other.  This is particularly effective for the teen when the parents are at odds.  And sometimes, the teen chooses to live with one parent because he or she makes the teen feel guilty or pressures the teen in some way.

From my experience, if parents can try to set aside their differences and come together to raise their teenager with a united front, this is usually the best outcome for the teen.  If the teen sees that both parents are on the same page with decision making and rules, there is less ability for the teen to manipulate the situation. Finally, if the teen knows that he or she has the support and love of both parents no matter what, then the teen will feel free to spend time with each parent without recourse.

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Posted in Custody

Contracts Are Considered When Using Assisted Reproduction Technology

Two recent decisions highlight the importance of contracts between parties in cases involving assisted reproduction technology (ART).  In Pennsylvania, the Superior Court found that television personality, Sherri Shepherd was indeed the legal mother of a child born in a surrogacy arrangement.  For the full story click here.   Basically, Shepherd and her then husband, Lamar Sally entered into a contract with a gestational carrier to bear a child for them.  During the pregnancy, the couple began having marital problems, and Shepherd did not want to sign the necessary paperwork to be named on the birth certificate of the child.  The Court, nonetheless, enforced the gestational carrier contract where both Shepherd and Sally were named as the intended parents of the child and found that they were the legal parents of the child.

A case coming out of California gave further guidance on the issue of preserving frozen embryos when parties divorce.  For the full story click here.   Basically, as in many contracts signed at fertility clinics when parties decide to preserve embryos, here the parties agreed that their frozen embryos be destroyed in the event they divorced.  Despite this agreement, the Wife asked that the Judge disregard it.  She appealed to the Judge’s humanity in making a plea to save the embryos.  Basically, she asked to Judge to ignore the contract and consider the compelling facts of the matter in making a determination.  Specifically, the Wife wanted the Judge to understand that she was infertile having been rendered so by breast cancer.  She was also 46 years old.  Despite the Judge’s sympathy for the Wife, she decided to uphold the terms of the parties’ contract and direct that the frozen embryos be destroyed. While she did not deny that Wife had the right to procreate, she refused to force Husband into unwanted parenthood.

These two recent decisions highlight the importance of taking contracts seriously when parties enter into ART arrangements.  While most parties who are utilizing assisted reproduction technology are primarily focused on creating children when they enter into such agreements, they must consider all permutations arising from the creation of these children, including the fact that they may not remain together as a couple in the future.  Thus, it is important to plan accordingly.  As we have seen, Courts are increasingly likely to look at these contracts in deciding future disputes between the parties.

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Posted in Custody

Introducing A New Significant Other To Your Child During Divorce

shutterstock_165037775During the course of divorce it is fairly common for one (if not both) of the parties to become involved in a new relationship.  It is natural then for that party to want to spend time with his or her new love while also parenting the children of the marriage.  Is it wrong to mix the two?  And if so, when is it appropriate to introduce a new significant other to the kids?  I recently wrote a post about this for Avvo’s Naked Law Blog.  Click here to view the post where I discuss how a New Jersey Court offered some guidance on this difficult issue.  Simply put, the Court realized that children are not raised in a vacuum, and while it may be appropriate to put some restrictions on the amount of time this new third party spends with the children, especially in the beginning, barring any potential danger that this party may cause to the kids, it may not be appropriate to create any type of permanent restrictions.  As I commented, it is important that the divorcing parties keep the best interests of the children, and not their own self-interest, paramount.  If this is the case, there is a strong likelihood that they will not only be able to resolve this issue, but most custody issues, with little strife.


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Posted in Custody, Uncategorized

The Ashley Madison Hack — Will It Cause Couples To Divorce?

Everyone is speculating that the Ashley Madison hack will mean an increase in business for divorce lawyers.  This remains to be seen.  However, the real question is what happens if your name appears on the list of users?  And what if it is not your name but your spouse’s name that is included on this list?

In most States, including Pennsylvania and New Jersey, infidelity in itself will not usually affect the financial outcome of your divorce, nor do you need to prove infidelity to get divorced.  We have “no fault” divorce which essentially means that if one party wants to get divorced for any reason, they will be permitted to do so.  Moreover, while marital fault, i.e. infidelity, is a factor that a Court can consider in awarding alimony or dividing property, as a practical matter Courts primarily focus on economics when determining these financial matters.

So then, how will the Ashley Madison hack affect the divorce rate?  In fact, there will likely be more divorces as a result of this event.  The reason is that many people who may suspect that their spouse is cheating often need confirmation of same.  That is why they hire private investigators to track down their spouses to see if their suspicions are true. Well, a private investigator is not needed to confirm that those who used the Ashley Madison site have cheated. The information is out there for everyone to see.  Once the infidelity is confirmed, it is likely that those who were contemplating divorce will actually move forward.  And others, who never suspected that their spouses were cheating may now have a reason to get divorced.

It will not only be the spouses of those who used Ashley Madison who might move forward with divorce.  In fact, those who used the site may be relieved that they have been “discovered” and may decide to end an otherwise unhappy marriage.

If parties decide to divorce as a result of being discovered using Ashley Madison, what will happen if any monies are recovered from a lawsuit against the site for breach of the confidentiality it promised?  Should these monies be considered marital assets subject to division?  Frequently, Courts look to the timing of the injury provoking the lawsuit to determine whether it is marital or not.  In this unusual instance it would seem that fairness dictates that any financial recovery should be shared in some way.

The ultimate fallout from the Ashley Madison hack remains to be seen.  However, the most important lesson from all of this is that no websites are 100% secure and should be treated as such.  Thus, be careful of what you post.

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Posted in Divorce

Moving Toward True Marriage Equality

With the recent decision of the U.S. Supreme Court, same-sex couples now have the freedom to marry, and divorce, throughout the Country.  There is finally marriage equality.

Certainly, being able to marry is important as not only is it the ultimate demonstration of love and commitment, but it also confers certain legal rights, that to date, some same-sex couples were not able to enjoy.  For example, with marriage, spouses also get certain mandatory rights of inheritance.  In Pennsylvania and New Jersey, a party cannot disinherit his or her spouse and even if one spouse dies without a will, the other will automatically inherit at least a third of the decedent’s estate.  In addition, married couples are able to file taxes jointly and receive social security benefits from their spouse.  They are also entitled to visit their spouse in the hospital and make medical decisions on his/her behalf.

What seems ironic is that by being able to marry, same-sex couples are now also able to divorce wherever they may live.  Prior to this landmark decision, couples who married in States where same-sex marriage was legal and moved to States where it was not, were not able to divorce if the marriage went south.  Our divorce laws are designed to give property and other financial rights to couples who were once married.  Without such rights, there is no standard methodology for dividing property that was acquired during the marital relationship, nor is there any right for a dependent spouse to receive support.

What remains to be seen with the advent of marriage equality, is whether same-sex couples will be given the green light to adopt children as a couple.  If they decide to have children through alternative reproduction technology (“ART”), i.e. a surrogate, egg donor or sperm donor, will both spouses be deemed the legal parents of the child by virtue of their marriage, although one of them has no biological connection to the child?  Once all married couples are treated the same, then we will have true marriage equality.


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Posted in Divorce, Uncategorized

Does Your Wife Deserve A Bonus?

shutterstock_162812834Does a wife deserve a monetary “bonus” for exemplary skills in housekeeping and child rearing?  In some social circles, this is actually occurring.  In fact, the trend was explored recently in a New York Times Op Ed piece, “Poor Little Rich Women,” and I was asked to comment it today on television on Fox29.

The concept is that wealthy, educated women who choose to stay home are rewarded for their skills as a wife and mother, sharing in their husband’s year end bonus.  It appears that in most instances, this sharing is totally at the discretion of the husband.  And while it seems that couples  sometimes attempt to memorialize this arrangement by way of a prenuptial or postnuptial agreement, the problem is that there is no guarantee of any amount of money to be paid to the housewife.

The idea of a woman as the lesser partner in a marriage is long lost notion — one that need not be revived in modern society.  Our divorce laws have developed over time to recognize the contribution of a spouse who decides to stay home to maintain the household and raise children.  That is why, that in a divorce a spouse who does not work outside of the home is nonetheless, entitled to share in the marital assets — at least equally — if not disproportionately in their favor.  Similarly, in most states, without a prenup, a party cannot disinherit their spouse in the event of death.  By operation of law, a spouse may be entitled to at least a third of the deceased spouse’s estate.  Thus, the law recognizes that a dependent spouse should have entitlement to certain monies in the marital estate without relying solely on a reward from the monied spouse.

While memorializing the right to a bonus in a prenuptial or postnuptial agreement appears as a means of guaranteeing same, the problem is that without specifying an amount or percentage of a bonus that is to be paid on an annual basis, enforceability becomes an issue.

While there is no doubt that incentivizing employees to perform their duties is a time-tested concept that works in the marketplace, spouses should not have an employer/employee relationship.  Rather, they should be viewed as equal partners who work together to further the joint enterprise.

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Posted in Postnuptial

Divorce By Social Media

This morning, I appeared on Fox29 in Philadelphia where I discussed and commented on a recent case out of Brooklyn, New York.  In this matter, a divorcing party was granted permission to serve initial process by way of Facebook.  In New York, like many jurisdictions, an initial divorce summons or divorce complaint must be served by personal service, and if the other party cannot be found after diligent search, a court may allow alternate means of service such as publishing notice in a local newspaper.  The rules governing service of initial process are very specific and usually very limited, until now, that is.

In the Brooklyn case, the wife demonstrated to the Judge that she spent significant time, with no success, searching for her estranged husband in order to serve him with the divorce.  The only way she knew how to communicate with her husband was via her Facebook account.  Thus, the Judge granted her permission to serve divorce papers through social media.

This case is noteworthy for a number of reasons.  First, courts are usually slow to embrace technology.  For example, in many jurisdictions pleadings in divorce litigation, such as complaints, motions, etc. cannot even be filed with the court electronically.  And service of these documents on the other party cannot even be accomplished by facsimile or emails.  Thus, allowing a party to serve a complaint by Facebook is a huge leap in terms of efficient use of technology.

Second, divorce and family law attorneys usually advise clients to be circumspect in their use of social media.  After all, it is no secret that communications on social media sometimes cause marital rifts in the first place which may eventually lead to divorce.  Additionally, we have all heard horror stories of people posting inappropriate comments and pictures on social media, some of which end up as evidence in divorce and/or custody trials.  So, using social media to assist in the process of moving a divorce forward in a more positive manner is a refreshing concept.

Will service of complaints by social media become the norm in divorce cases?  I think not.  However, this case will serve as a landmark in giving people a viable alternative to present to the court in those unusual situations where the other party cannot be located by any other means.  Eventually, the courts will catch up to current technology, and a case such as thisshutterstock_193510199 is a step in the right direction.


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Posted in Divorce

Divorce And Taxes

shutterstock_125573096Figuring out taxes when going through a divorce is challenging for most.  The attached post (click here) that I wrote for Avvo’s Naked Law Blog gives some important tips to make tax time easier.

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Posted in Divorce
About Family Law Focus
The Family Law Focus blog provides highlights, updates and insights on complex family disputes including divorce, division of property, and alimony; child and spousal support; child custody; domestic violence; pre- and post-nuptial agreements; name changes; and adoption or termination of parental rights.
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The Editor

Jennifer A. Brandt, of Cozen O'Connor's Family Law practice, has represented a wide variety of clients in hundreds of family law cases throughout her career. Jennifer is a regular legal commentator on national and local television outlets such as CNN, Fox New Network, HLN, MSNBC, Fox29, ABC News, NBC and CBS and frequently writes and contributes to articles in numerous publications, including the Huffington Post, Fox, The PhiIly Post,,, The Philadelphia Inquirer, The Philadelphia Business Journal, the National Law Journal, and Main Line Today magazine.
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