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December 2014 Archives

Annulment

An annulment proceeds similar to a fault-ground divorce in terms of procedure. First, it must be established that an annulment is appropriate. Pennsylvania acknowledges annulment for void and voidable marriages. Under 23 Pa C.S. 3304, void marriages include those where (1) one of the spouses is still in a former marriage, (2) the parties are too closely related, (3) either of the parties was incapable of consenting to the marriage, usually due to mental disorder, or (4) either of the parties was under 18 if claiming a common law marriage. A void marriage is one that is invalid because it violates some public policy. In contrast, a voidable marriage is presumptively valid unless a party challenges it.

Fault Grounds and Defenses

Pennsylvania has a mixed approach to divorce in that it still allows fault grounds in addition to no-fault grounds. 23 Pa CS 3301(a) lists the fault grounds for divorce as follows: (1) willful and malicious desertion, without reasonable cause, for the period of one or more years; (2) adultery; (3) cruel and barbarous treatment; (4) bigamy; (5) imprisonment following conviction 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."

International Parental Kidnapping

International parental kidnapping occurs when a child is removed from the United States with the purpose of interfering with the other parent's custodial rights. The federal law governing this issue, 18 U.S.C. §1204, defines child as a minor less than sixteen (16) years old and specifies that parental rights includes any custody rights (sole, joint, visitation) whether existing by court order, prior agreement or operation of law. There are affirmative defenses under the law which would consider if removal is pursuant to a court order, for the purpose of escaping domestic violence, or of a temporary emergency nature. Sanctions for parents found to be guilty of international kidnapping include imprisonment for up to three years.

Insurance Policies

Questions regarding insurance policies often come up in the context of a divorce. Married couples may have commingled auto insurance policies, health insurance plans, and/or life insurance policies with their spouse as beneficiary. Technically, there are no rules on maintaining certain policies that existed at the commencement of the divorce in the sense that there is no automatic punishment or sanction for dropping these policies at separation. On the other hand, the courts have the power to order certain policies be maintained through their general equity powers in the period between separation and divorce. Perhaps, the most prudent action is to maintain all policies until finalization of the divorce or other mutual agreement or seek the advice of an attorney first to avoid the potential of additional fees that may be incurred if you are ordered to reinstate any policy and/or be responsible for any liability incurred while the other party was uninsured. Additionally, as it relates to health insurance specifically, it is routinely ordered as part of a support action and unreimbursed medical expenses, which can be substantial if there is a lapse insurance coverage, will also be shared.

Discovery in Support Cases

Discovery is the process of obtaining information from the opposing party in the course of a lawsuit. Discovery is governed by the Pennsylvania Rules of Civil Procedure (Pa. R.C.P.). Rule 1930.5 states that there shall be no discovery in a simple support, custody or Protection from Abuse proceeding unless authorized by court. In order for you to be allowed to send discovery in a support matter, you must get your case deemed complex by the court. An example of a potentially complex support case requiring discovery would be one where one, or both, of the parties are self-employed. Procedure in Bucks County calls for a hearing date on the issue of whether or not discovery should be permitted. If so, the substantive portion of the hearing will be postponed pending completion of discovery as granted.

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