Return to Articles




Setting the Record Straight on the Ten Most Common Areas of Misunderstanding in Family Law

by Craig A. Cohen

Fall 2000, Vol. 63, No. 3

Throughout the years of practicing in the area of family law, I have had the distinct pleasure of speaking with thousands of individuals-answering questions and providing explanations on how each of their particular domestic problems may be addressed under current Pennsylvania law. From this experience, however, I have discovered that among those with whom I have spoken, both non-lawyers as well as some lawyers not practicing in the family law area, there is an unfortunate and pervasive amount of misinformation and misunderstanding regarding some of the most basic tenets of family law.

What is perhaps more interesting, however, is that there exists a distinct commonality to this misinformation-almost as if there is some source, feeding the public with the same incorrect recitations of law on issues of divorce, custody and support matters. And while this is more likely the product of individuals listening to-in the words of one woman I recall speaking with-"a friend of my mother's who went through this several years ago in Des Moines," it is clear that a great deal of personal angst could be avoided if individuals first spoke with a family law practitioner who, presumably, should be well versed in the matters to be discussed here.

While this article does not attempt to analyze every legal misimpression of family law that I have encountered in my career-and there are many-it does, in my estimation, address the ten most common.

"I heard that there is no alimony in Pennsylvania."

While there is no formal hierarchy to the listing contained in this article, due to the sheer number of times I hear this from prospective clients-at least three to five times a week-I am compelled to address it first.

Pennsylvania law does in fact recognize the concept of alimony: 23 Pa.C.S.A. §3701(a) provides that "[w]here a divorce decree has been entered, the court may allow alimony, as it deems reasonable . . ." Moreover, the statute enumerates seventeen factors that the court shall consider in determining whether an order of alimony is warranted. These include matters such as the relative earnings and earning capacities of the parties; the ages and physical conditions of the parties; the duration of the marriage; the standard of living established during the marriage; and the marital misconduct of either of the parties during the marriage.

While there is no formal method of assessing the duration or amount of alimony in Pennsylvania, the factors enumerated in the statute play a significant role in this determination. However, since alimony is primarily considered to be rehabilitative to the recipient spouse and not permanent support, a court may be resistant to order alimony where a spouse has sufficient means to provide for him or herself. Nevertheless, where this is not the case and rehabilitation is not possible, either due to age, physical condition or other circumstance, a court may very well provide for an order of indefinite alimony.

"If we get divorced, equitable distribution means that I get half of everything, right?" Needless to say, if this question must be asked in the first place, my prospective client is somewhat less than elated when I answer, "not necessarily." While a full dissertation on the law of equitable distribution could fill volumes-certainly not the intent here-suffice it to say that the term "equitable distribution" is not synonymous with a fifty/fifty split of property. See Frantangelo v. Frantangelo, 360 Pa.Super. 487, 520 A.2d 1195 (1987).

Pennsylvania law provides that "[i]n an action for divorce or annulment, the court shall, upon the request of either party, equitably divide or assign . . . the marital property between the parties . . ." 23 Pa.C.S.A. §3502(a). As with alimony, the statute sets forth a litany of factors that the court may consider in rendering a fair and reasonable allocation of the parties' "marital property." These factors include, but are certainly not limited to, the length of the marriage; the age, health and employability of each of the parties; the contribution of one party to the education, training or increased earning capacity of the other party; the sources of income of both parties; and the standard of living of the parties established during the marriage.

The term "equitable distribution" means just that: the court, in its infinite wisdom, makes a determination as to what sort of distribution of property is, under the circumstances, most equitable. If, after consideration of the factors set forth in the statute, the court determines that each party is entitled to fifty percent of the marital estate, then so be it. But such a division of property should not be presumed from the outset.

"I caught my spouse in bed with another. I'm going to take them to the cleaners."

I quip, to myself of course, "That's awfully gracious of you, offering your spouse a ride to the laundry after committing adultery." To the client, however, I respond more regrettably, "Well, perhaps not."

While it is difficult for many to comprehend, infidelity bears no relationship to property distribution. Statute 23 Pa.C.S.A. §3502(a) is quite clear on this matter: "The court shall . . . equitably divide, distribute or assign, in kind or otherwise, the marital property between the parties without regard to marital misconduct . . ." While marital misconduct-and adultery certainly fits the bill-is itself grounds for divorce, and may be extremely useful for purposes of establishing an award of alimony under 23 Pa.C.S.A. §3701(b)(14), it is not, at least under current Pennsylvania law, a valid consideration in an equitable distribution proceeding.

"We bought our house right after we were married, but it's in my name alone, so it's not marital property."

It is important to keep in mind that for the most part, the consideration of what is and is not marital property is relevant for one reason-equitable distribution. As already stated, "[i]n an action for divorce or annulment, the court shall, upon the request of either party, equitably divide, distribute or assign . . . the marital property between the parties . . ." 23 Pa.C.S.A. §3502(a). It is of primary importance to any prospective client, therefore, that a preliminary determination be made as to what is marital property.

Marital property is defined in 23 Pa.C.S.A. §3501(a) as:
  1. all property acquired by either party during the marriage, including the increase in value, prior to the date of final separation, of any non-marital property acquired pursuant to paragraphs (1) and (3), except:

    1. Property acquired prior to marriage or property acquired in exchange for property acquired prior to the marriage.
    2. Property excluded by valid agreement of the parties entered into before, during or after the marriage.
    3. Property acquired by gift, except between spouses, bequest, devise or descent.
    4. Property acquired after final separation until the date of divorce, except for property acquired in exchange for marital assets.
    5. Property which a party has sold, granted, conveyed or otherwise disposed of in good faith and for value prior to the date of final separation.
    6. Veterans' benefits exempt from attachment, levy or seizure pursuant to the act of September 2, 1958 (Public Law 85-857, 72 Stat. 1229), as amended, except for those benefits received by a veteran where the veteran has waived a portion of his military retirement pay in order to receive veterans' compensation.
    7. Property to the extent to which the property has been mortgaged or otherwise encumbered in good faith for value prior to the date of final separation.
    8. Any payment received as a result of an award or settlement for any cause of action or claim that accrued prior to the marriage or after the date of final separation regardless of when the payment was received.

  2. Presumption. All real or personal property acquired by either party during the marriage is presumed to be marital property regardless of whether title is held individually or by the parties in some form of co-ownership such as joint tenancy, tenancy in common or tenancy by the entirety. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (a). Assuming that the prospective client's house was not purchased with funds obtained prior to marriage, funds given directly to that spouse as a gift, funds awarded as part of a premarital cause of action or that there is not otherwise an agreement between the client and his or her spouse stating otherwise, chances are the house is marital property subject to equitable distribution.

"I never see my child anyway, so why should I pay child support?" There are few things that the court takes more seriously than child support. Next to abuse cases, providing for the basic needs of a minor child is perhaps the most important matter a court can consider in the arena of family law.

Statute 23 Pa.C.S.A. §4321(2) states that "[p]arents are liable for the support of their children who are unemancipated and 18 years of age or younger." The obligation imposed under this section is nearly absolute. Com. ex rel. Scanlon v. Scanlon, 311 Pa.Super. 32, 40, 457 A.2d 98, 102 (1983). Moreover, an individual's inability to exercise custody or visitation of the minor child, no matter how unjustified, is completely irrelevant to the duty of that individual to pay child support. See DeWalt v. DeWalt, 365 Pa.Super. 280, 529 A.2d 508 (1987). It is certainly understandable that one paying a significant order of support would necessarily feel a sense of frustration in being denied access to his or her child. I would counsel this individual, however, that it is not the payment of the support that created the entitlement of custody, but rather, the individual's ability as a parent to significantly enhance the quality of the child's life. It would be to the custody arrangement that I would direct my efforts, not necessarily the support.

"I'm the mother of the child. Don't I automatically get physical custody?"

This notion most likely harkens back to the old theory known as the "tender years doctrine." No longer recognized by the courts, there existed a presumption that during the early or "tender years" of life, a child should be with the mother.

Today, however, courts seek an answer to one primary question in determining custody: "What is in the best interests of the child?"

Although the issues can be limitless, there are certain factors that a court will consider in making determinations of custody. Among them are the general fitness of the parties to act as good parents; the degree to which a parent seeks to play an active role in the child's life; the existing relationship the child has with a parent; and depending upon age, the preference of the child. While those factors may indeed point to the mother as a preferential prime custodian-due in large part to the societal role women have played in the rearing of children in this country-it is by no means a foregone conclusion that in any particular custody dispute a mother will be given primary custody.

"Don't my monthly expenses affect how much child support I pay?"

As a general rule, no. And while there are always exceptions to the rule-such as when the parties' combined net income exceeds $15,000 per month, child support shall be calculated pursuant to the standard set forth in Meltzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984) wherein expenses are considered-suffice it to say that unless one is referring to the standard items that are deducted from one's income in child support cases pursuant to Pa.R.C.P. 1910.16-2, expenses are pretty much irrelevant. In other words, child support in Pennsylvania is based upon the income of the parties, not the expenses.

Unfortunately, it is usually not this type of expense that the prospective client is seeking to have considered in a reduction of child support case. Rather, it is more often in the nature of "that large payment for this really great fishing boat I just got," or the "high monthly payments on my Bloomingdale's credit card," that usually evokes the question in the first place. To that end, the court has very little sympathy.

"I have primary custody of my children under a court order. Can't I move anywhere I want?" Having a court order for custody is not a license to move with the children where and when you want. Indeed, having a formal custody order places many restrictions on the parents, custodial and non-custodial alike.

In Plowman v. Plowman, 409 Pa.Super. 143, 597 A.2d 701 (1991), the court determined that absent an agreement by the parties, a full evidentiary hearing must be conducted before a child can be moved from the jurisdiction of the court or within a reasonable time thereafter. It is at this hearing that the court will determine, based upon several factors, whether the move can be permitted.

The standard for the court to apply in making a determination of relocation was established in the case of Gruber v. Gruber, 400 Pa.Super. 174, 184, 583 A.2d 434, 439 (1990). In Gruber, a three-part test was established to require the court to consider:

  1. The potential advantages of the proposed move and the likelihood that the move would substantially improve the quality of life for the custodial parent and the child and is not the result of any momentary whim on the part of the custodial parent;
  2. The integrity of the motives of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it;
  3. The availability of realistic, substitute visitation arrangements that will adequately foster an ongoing relationship between the child and the non-custodial parent. While the Gruber opinion provides the underlying analysis, there are many factors that a court must consider in determining what is in the best interests of the children in relocating to another jurisdiction. It is the weighing of all such factors that ultimately guides a court in its determination of whether to allow a move.

The point to be made here is that, invariably, custodial parents make significant, life-altering changes on the misguided presumption that they can simply pick up and move with the children anywhere and at any time they please. One should be cautioned, however, that no matter what sacrifices have been made and no matter what steps have been taken to effectuate a move, the court may find that the best interests of the children are not being preserved, and thus, may not permit the move. "We have been living together for seven years now. Don't we have a common law marriage?" It is noteworthy how many individuals seek to establish or otherwise determine if they have a common law marriage only when they stand to gain or lose something of significant value. I recall a conversation with a prospective client once, where it had been recounted to me that she had been living with a man for several years. He had long been separated from his wife and he and this woman were now living together in a house the woman purchased before the two met. Her concern was that should their relationship fail, could she lose her house to him if he were, in fact, her common law husband.

I reassured the woman that she had nothing to worry about. Although Pennsylvania is one of the few states that still recognizes common law marriage, her situation would certainly not qualify. I explained to her that common law marriage is one of agreement of the parties, absent a license or a formal ceremony. To be valid under Pennsylvania law, however, a common law marriage must satisfy two basic requirements.

First, the parties to the purported common law marriage must have the capacity to marry. In other words, they must be of legal age to marry and they must be currently unmarried. This, of course, was extremely relevant in this case, since the woman advised me that the man with whom she was living was still married to his wife. For purposes of her scenario, that was the end of the consideration.

Second, and the real clincher in these cases, the parties must express a present intent, or verba de praesenti, to be married. There must be some recognition by the parties that they are in fact husband and wife. This, oddly enough, may be enough to form the basis of a marriage under common law principles.

Moreover, even if there are no present words of intent, such intent may be inferred from the actions of the parties. For example, has the purported wife taken the husband's name? Do they have a general reputation in the community as being husband and wife? Do the parties wear wedding rings? Do the parties file joint tax returns?

If these elements are established, a common law marriage may exist. And while a presumption of common law marriage may be raised by other factors, including constant and regular cohabitation, there is no set rule that requires parties to have lived with each other for seven years.

Nevertheless, common law marriage claims are not favored by the courts in Pennsylvania. In the recent case of Staudenmayer v. Staudenmayer, 552 Pa. 253, 714 A.2d 1016 (1998), the Pennsylvania Supreme Court stated that "[w]hen an attempt is made to establish a marriage without the usual formalities, the claim must be reviewed with great scrutiny." Id. at 262. Moreover, as stated in Baker v. Mitchell, 143 Pa.Super. 50, 54, 17 A.2d 738, 741 (1940), "the law of Pennsylvania recognizes common law marriages. But they are a fruitful source of perjury and fraud, and, in consequence, they are to be tolerated, not encouraged; the professed contract should be examined with great scrutiny, and it should plainly appear that there was an actual agreement entered into, then and there, to form the legal relation of husband and wife." Id.

"Since we have been married only a couple of months, can't I get an annulment instead of a divorce?"

Absent other factors, it wouldn't matter if you were married only two minutes. Annulment, to the misunderstanding of many, is not a time-based method of dissolving marriage. Rather, annulment is focused upon the validity of the marriage, on whether, based upon various factors set forth in the statute, the marriage can be deemed void or voidable under the law.

Statute 23 Pa.C.S.A. §3304 provides those instances where a marriage may be considered void under the law. The general rule is that where there has been no confirmation by cohabitation following the removal of the following impediments, a marriage shall be deemed void in cases where: (1) either party at the time of marriage had an existing spouse; (2) the parties were related within the degrees of consanguinity prohibited by section 1304(e) of the Divorce Code; (3) either party was incapable of consenting by reason of insanity or serious mental disorder; or (4) either party to a purported common-law marriage was under 18 years of age.

In addition, while not void on its face, a marriage may be "voidable." Statute 23 Pa.C.S.A. §3305 provides that the marriage of a person shall be deemed voidable and subject to annulment where: (1) either party was under 16 years of age, unless the marriage was authorized by the court; (2) either party was 16 or 17 years of age and lacked the consent of their parent or guardian and has not subsequently ratified the marriage upon reaching 18 years of age and an action for annulment is commenced within sixty days after the marriage ceremony; (3) either party was under the influence of alcohol or drugs and an action for annulment is commenced within sixty days after the marriage ceremony; (4) either party was at the time of the marriage and still is naturally and incurably impotent, unless the condition was known to the other party prior to the marriage; or (5) one party was induced to enter into the marriage due to fraud, duress, coercion or force.

With the exception of sections 3305(a)(2) and 3305(a)(3), the length of time two individuals have been married is irrelevant, and therefore, will not in and of itself establish grounds for an annulment.

While there are various personal reasons why individuals seek an annulment-ranging from religious ones to a strong desire to effectuate a legal denial of a past mistake-in many instances, a divorce may provide the same sought-after result.

As I stated earlier in this article, this listing represents what I believe to be the most pervasive pieces of public misinformation in the area of family law. By focusing on these basic areas of law, it is my hope to provide practitioners-and clients alike-with an elementary resource to better understand those issues that will invariably arise in the future.