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January 2016 Archives

Filial Responsibility Statute

Under the PA filial responsibility statute, adult children are financially responsible for payment of their parents' medical care and nursing home costs. This was recently decided in the case of Health Care and Retirement Corporation v. Pittas, a 2012 PA Superior Court case. See 23 Pa.C.S. ยง 4603.

Paternity by Estoppel

A presumption of paternity arises where a child is born into an intact marriage. In that circumstance, absent clear and convincing evidence to the contrary, the husband will be deemed to be the father. However, even in the absence of a biological connection, paternity may be established. Paternity by estoppel acts to impose an obligation on the party who holds themselves out as a father to the child and supports the child to continue to support the child. The Pennsylvania Supreme Court has held that the purpose of paternity by estoppel is to keep families intact and protect the best interest of the child by shielding them from claims of illegitimacy and, potentially, a broken family.

Alimony Modification

Alimony is support paid to an ex-spouse following the divorce decree. Unless otherwise stated by agreement, alimony may be subsequently modified due the changed circumstances of either party. The changes must be substantial and of a continuing nature. For example, if a party loses their employment or becomes disabled modification could be sought. An alimony provision within an agreement between the parties may not be modified in the absence of a specific provision allowing such a modification within the agreement.

3301(d) Affidavit and Counter-Affidavit

Most parties pursuing divorce will choose to proceed with no-fault grounds for divorce. A no-fault divorce simply means there has been an irretrievable breakdown of the marriage. There are two different ways to establish an irretrievable breakdown of the marriage under the Divorce Code. First, both parties may consent to the divorce after 90 days from when the complaint was filed and served. This is referred to as a 90-day mutual consent divorce. Alternatively, if one party won't consent, the other party can move forward after the parties have been "separated" for two years. This is referred to as a 2-year separation divorce.

Mental Incapacity in Divorce Case

Section 3308 of the Divorce Code provides for an action in divorce where the defendant is suffering from a mental disorder. In practice, however, seeking a divorce where one of the parties is mentally incapacitated can raise unique issues. The Pennsylvania Rules of Civil Procedure discuss the steps that must be taken when one of the parties is incapacitated. An incapacitated person is defined as an "adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that the person is partially or totally unable to manage financial resources or to meet the essential requirements for physical health and safety." Pa. R.C.P. 2051. If a person is determined to be incapacitated a guardian ad litem must be appointed to act on that party's behalf.

Step-Parent's Duty to Pay Child Support for Step-Children

On December 29, 2015, the Pennsylvania Supreme Court decided that a step-parent can be responsible for child support if that step-parent has taken aggressive legal steps to obtain the same custodial rights as a biological parent. A.S. v. I.S., No. 8 MAP 2015 (Pa. Dec. 9, 2015). The mere existence of a relationship between the step-parent and child and other reasonable acts to maintain a post-separation relationship with stepchildren remainsufficient to establish a duty to pay child support. Id. citing Commonwealth ex rel. McNutt v. McNutt, 344 Pa. Super. 321 (1985).

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