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May 2013 Archives

Fault Grounds for Divorce

Most divorces proceed on the basis of no-fault or irretrievable breakdown of the marriage based on mutual consent after ninety days or two year separation, however, fault grounds for divorce can still be utilized. Under 23 Pa CS 3301(a), the fault grounds for divorce are listed and include(1) desertion for the period of one or more years; (2) adultery; (3) cruel and barbarous treatment; (4) bigamy; (5) imprisonment for a term of two or more years; and (6) indignities to the point of life being intolerable and burdensome. The party alleging fault must prove its existence and must also establish they are the "innocent and injured spouse." 

Custody Relocation Procedures

In a custody matter, court approval or permission of the parent is required prior to a relocation. A relocation would be any move that substantially interferes with the custodial rights of the other parent. 23 Pa CS 5337 lays out the specific procedures to be followed in the event of a proposed relocation. First, the party seeking relocation should give 60 days notice to the other parent by certified mail, return receipt requested. If not possible to give 60 days notice, notice should be given within 10 days of becoming aware of the relocation. The notice of relocation should include as much information as possible regarding the new address including names and ages of individuals who will be residing there, home telephone number, name of new school district and school, and date of proposed relocation. A counter-affidavit should also be supplied with the notice giving the other party the opportunity to object to the relocation. 

Driver's License Suspension

One of the consequences of failing to pay child support is a suspension of your driver's license. This can happen if support is overdue by three months or more. Advance notice must be given prior to the suspension. The notice specifies the past due amount, how, when and where it can be contested. Grounds for contesting notice of suspension are limited to mistake in the amount of past due support actually owed or mistaken identity. The suspension will occur after thirty days if there is no response, the past due amount is not paid or excused, or there is not a court-approved payment plan in place. 

New Procedure for Protection from Abuse Cases

The Superior Court of Pennsylvania recently made a decision that will change how Protection from Abuse (PFA) cases will proceed. Previously, as a matter of practice, a PFA petition once filed would be reviewed by the Judge and then a decision could be made as to whether a temporary PFA order was warranted pending a final hearing just based on review of the petition. In Ferko-Fox v. Fox, 2013 PA Super 88 (2013), the Superior Court ruled that the practice of granting temporary orders in this fashion does not meet the requirements of due process as required by the PFA statute. Specifically, 23 Pa. C.S. 6107 (b) requires the court to conduct an ex parte hearing prior to determining if a temporary order is warranted.

Division of Military Benefits

A spouse is entitled to their share of the military pension no matter how insignificant. Under the 10 year rule, where the parties have been married for 10 years and the servicemember has accumulated 10 years of service, DFAS (Defense Finance and Accounting Services) can pay the spouse directly. When the 10 year rule has not been met the servicemember will be responsible to pay the spouse themselves. This, of course, makes it harder to enforce the distribution of the pension. A court can only award a division of a military pension if it has jurisdiction over the servicemember via residence, domicile or consent. Only disposable retired pay can be divided. This is the total monthly pay less certain deductions. The highest percentage a spouse can receive of the military retired pay is 50%. The spouse will stop receiving military pay when the service-member dies.

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