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family law Archives

Recognition of Foreign Orders

U.S. Courts have recognized foreign support/custody orders, divorce decrees, adoption decrees, and money judgments. A court will recognize a foreign Order under the doctrine of comity so long as the party has established domicile in the foreign country. As discussed in Hilkmann v. Hilkmann, "[c]omity is a recognition which one nation extends within its own territory to the legislative, executive, or judicial acts of another. It is not a rule of law, but one of practice, convenience, and expediency. Although more than mere courtesy and accommodation, comity does not achieve the force of an imperative or obligation...Comity should be withheld only when its acceptance would be contrary or prejudicial to the interest of the nation called upon to give it effect." 2003 PA Super 25 (2005).

Common Law Marriage

A common law marriage is distinguished from a regular marriage in that no marriage license is required. Instead, parties just have exchange words of intent to be married and hold themselves out to their community as a married couple. Often, the parties also lived together for some length of time as well. Common law marriage was abolished in Pennsylvania in 2005. Parties who met the requirements for common law marriage prior to 2005 can still be recognized as valid marriages. Once a common law marriage is established, it can only be resolved by divorce just as with any regular marriage. Moser v. Renninger, 2012 PA Super 59 (2011) discusses how to evaluate whether a valid common law marriage exists.

Void and Voidable Marriages

In order to file for an annulment, a party must establish the underlying marriage was either void or voidable. 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.

Filing Fees

Most family law actions that will be filed include a filing fee for the initial complaint or pleading. A part of these filing fees go to fund the Pennsylvania Children's Trust Fund (CTF). This fund has received approximately $40 million dollars from family law filing fees since inception. The initiative of the CTF is to prevent child abuse and neglect across the state. The main emphasis of CTF is to put prevention programs in place to decrease child abuse and neglect overall. The CTF grants its money to local community programs with the same initiatives. It is up to the respective community programs to apply with CTF to see if they are eligible for a grant. Currently, upwards of 280 community based programs across the state have received grants to aid in the fight against child abuse and neglect.

Receipt of an Inheritance

The receipt of an inheritance may impact your divorce or support case. Section 3501 of the Pennsylvania Divorce Code defines what will be considered marital property, and up for division, versus what will be considered non-marital property. Marital property includes all property acquired by either party from the date of marriage through the date of separation. There is a presumption all property acquired during the marriage is marital regardless of how title is held (e.g. individually vs. jointly). However, property received as a gift, bequest, devise or descent is non-marital per 23 Pa. C.S. 3501(a). Accordingly, an inheritance that is received during the marriage can still be claimed as non-marital property. As a practical tip, parties should avoid commingling inheritance funds with other marital funds. Inheritance funds may still need to be disclosed since the separate assets of the party are a factor for equitable distribution under 23 Pa. C.S. 3502.

Pre-Nuptial Agreements

A pre-nuptial agreement is a private contract between the parties entered into prior to their marriage that outlines how assets and debts will be handled if the parties subsequently divorce. A simple pre-nuptial agreement often provides that each party retains their respective premarital property and any increase of value of premarital assets. It may also provide that anything they acquire in their individual name during the marriage would remain their separate property. Property acquired in joint names can be divided based on the applicable divorce laws or the parties can agree to split at a certain percentage, e.g. 50/50. A pre-nuptial agreement may also address spousal support. It is not uncommon for the amount of support to a spouse to increase based on the number of years married or number of children produced. Alternatively, one spouse may be required to pay support as a punishment if they commit adultery during the marriage. 

Military Retired Pay vs. Disability Pay

Military retired pay is a divisible asset in the context of a divorce matter. For marriages of at least ten (10) years, military retired pay can be divided through DFAS such that each party receives their share of that benefit directly. For marriages of less than ten (10) years, the service member would be responsible to make sure the spouse received the correct amount of the benefit. Disability pay is not a divisible asset. The amount of disability pay is based on the extent of the service member's disability rating. Service members used to have to reduce their retired pay by the amount of any disability pay they elected to receive. This could result in the spouse of the member being shorted.

How to Change Your Custody Agreement/Parenting Time

If you have children and are getting divorced, you will negotiate a parenting time schedule, typically called a custody agreement. This dictates the amount of time that each child will spend with each parent. It can include overnights, holidays, and special arrangements like pick-ups and birthdays. If you are divorcing with younger children, your schedule will more than likely need to be adjusted in the future to accommodate different schedules.  If you have already been divorced for a few years, you may be concerned that your custody agreement is no longer working. After all, your schedule, as well as the activity schedules of your children, have probably changed over time.  

Donor Agreements

Donor agreements are vital for identifying the legal rights of parties considering artificial insemination as part of assisted reproduction. An agreement should indicate that the donor does not have any rights subsequent to the donation. Specifically, the agreement should explain that no parental relationship is intended for the donor. It should be clear that donor's parental rights are terminated and that the donor forever forfeits the ability to file for any type of custody or visitation if a child is subsequently born. The agreement would allow the recipient to dictate what happens with the donation or any embryos created using the donation.


Surrogacy is the process whereby a third party is used to assist couples in having a child. Surrogacy may be traditional wherein the third party will have a biological tie to the child however has agreed to relinquish any legal rights as a parent. The other option is gestational surrogacy where the third party is just a carrier and the egg and sperm of the intended parents are implanted in the surrogate. Pennsylvania does not have a statute in place as it relates to surrogacy, however, case law has upheld a surrogacy contract. In J.F. v. D.B., the carrier mother attempted to keep the children following birth despite having entered a surrogacy agreement. 897 A.2d 1261 (2006). The court eventually held she didn't have standing for a custody action and turned the children over to the intended parents per the contract. The courts went a step further in In re Baby S, when it explicitly upheld a surrogacy agreement. 2015 Pa. Super. 244 (2015).

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