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I saw something on the news recently about a man in North Carolina who was awarded a $750,000.00 judgment against his ex-wife’s boyfriend for a tort called “alienation of affections.” The idea is that the boyfriend caused the jilted husband’s problems and, if not for the boyfriend, the husband and wife would still be married. Obviously the husband is not getting his wife back but, the $750,000.00 is supposed to help him fill that void.
For those of you who think you have a similar claim against a certain someone, if you live in Pennsylvania or 43 other states, you are out of luck. Pennsylvania has something generally referred to as an “Anti-heart balm” statute baring these types of claims. Specifically, 23 Pa.C.S.A. §1901, abolishes claims for alienation of affections and 23 Pa.C.S.A. §1902, bars similar claims for breach a contract to marry. Only North Carolina, Hawaii, Mississippi, New Mexico, South Dakota and Utah recognize the cause of action for alienation of affections. Also, remember that judgment for $750,000.00 is a lot different from $750,000.00 in hand. The husband in the North Carolina case still has to collect on that judgment.
Finally, in looking up the Pennsylvania statutes, there was a little surprise. There is an exception to 23 Pa.C.S.A. §1901’s abolition of claims for alienation of affection in the event that the defendant in the case is the parent, brother or sister of the plaintiff’s spouse. So, if your brother-in-law talks your spouse into walking out of your marriage, you still have the right to sue him.
There is no question divorce is one of the most stressful life events one can experience. The journey may become even more daunting if you are also dealing with a mental health diagnosis. If you are affected by a mental health diagnosis, rest assured you are not alone. In fact, according to the World Health Organization, one in four people in the world will be affected by mental or neurological disorders at some point in their lives.
Whether just starting your path to divorce or being deep in the trenches, you may question whether your mental health status can be held against you. You may wonder if the courts will be biassed towards you, if it will affect support payments and if your diagnosis could cost you custody of your children. The good news is that a mental health diagnosis is not solely determinative of the outcome to these questions.
In terms of support awards, you may be concerned if you cannot work due to your diagnosis and are receiving Social Security. Social Security Disability (SSD) and Social Security Income (SSI) are treated differently. Pursuant to Pa. R.C.P. Rule 1910.16-2(a),SSD payments are considered income when calculating support amounts. Pa. R.C.P. Rule 1910.16-2(b), on the other hand, states that Social Security Income (SSI) payments are not includable as income for support purposes.
In terms of custody, 23 Pa.C.S. §5328 (a) lists the sixteen (16) factors to be considered when awarding custody. One of those factors (number 15) considers “The mental and physical condition of a party or member of a party’s household.” Therefore, the mental health diagnosis is but one factor for the court to consider in deciding custody.
Dealing with a divorce may seem overwhelming. If you are feeling overwhelmed, it is important to seek out help from professionals to assist you both legally and emotionally. It is also paramount that you remember to take care of yourself throughout the process.
By: Lawrence J. Persick
Did you ever have someone warn you about trusting a person who talks out of both sides of his or her mouth? Basically, they are advising you to stay away from people who are constantly contradicting themselves. That concept in a divorce context is addressed in Corey v. Wilkes Barre Hosp., No. 1980 MDA 2017 (Pa. Super. Decided September 23, 2019).
The Corey case arises out of wrongful death and medical malpractice action filed by a wife as administratrix of the husband’s estate and on her behalf as the decedent’s wife. One of the wife’s claims is for loss of consortium. A claim for loss of consortium is a claim for money damages based on the loss of the company, affection and conjugal relationship between a husband and wife; more simply put, it is a claim for the loss of companionship and sexual relations between a married couple.
The twist in the Corey case is the parties were separated and a divorce action pending when the alleged medical malpractice occurred. Defense counsel for the hospital and the doctor subpoenaed a series of emails between the wife and her divorce attorney to explore the validity of the wife’s loss of consortium claim. The wife asserted attorney-client privilege, but the trial court ordered the wife and her divorce attorney to release the emails. The Superior Court affirmed the Order directing release of the emails on the theory that the wife placed the marital relationship at issue in claiming loss of consortium; she now had to prove that there was “consortium” to claim it’s loss. The wife could not hide behind attorney-client privilege to protect the communications with her divorce attorney.
If there is a moral to the story, it is this: There are implications to being “separated” for divorce purposes going beyond the appropriate date to determine what is and is not a marital asset. If you are contemplating divorce, consider this when you decide to separate or, if you are an attorney, consider this when advising a client as to his or her date of separation. You don’t want yourself in the embarrassing position of getting caught talking out of both sides of your mouth.
We have officially launched our new podcast series, “Let’s Talk Family Law.” The first episode, “Let’s Talk Child Support” is live now! Click here to listen.
Attorneys Carolyn Mirabile and Lawrence “Skip” Persick discuss the nature of child support laws in Pennsylvania. Our Attorneys discuss frequently asked questions, such as:
· What is child support?
· How do you file for child support?
· What happens after you file for child support?
· How is child support determined?
· How does the Domestic Relations Section get money out of the other parent?
· How to reevaluate an old child support order?
Can a stepparent get any form of custody as to a step-child? The simple answer to that question is yes. Assume for a minute that a father has custody of his daughter. Mother is, for whatever reason, out of the picture; she has either moved across the country, has mental health or substance abuse issues, or just plain does not care to be in her daughter’s life. Father enters into a relationship with another woman and they eventually marry. This woman, the stepmother, becomes more of a mother to the child than the birth mother. A few years later, the father and stepmother split up and divorce. Initially, the father lets the stepmother spend time with the child but, when the father enters into a relationship with a third woman, the visits with stepmother are shut down.
This is essentially the fact pattern in Liebner v. Simcox, 834 A.2d 606 (Pa.Super. 2003). In that case, the Pennsylvania Superior Court affirmed the finding of the Dauphin County of Common Pleas that the stepparent stood in loco parentis to the child, meaning the stepparent had acted as a parent, and that visits between the stepparent and the child were in the child’s best interest. The courts overlooked the lack of a blood relationship between the child and stepmother, instead of focusing on the best interest of the child.
Lawrence J. “Skip” Persick handles various issues concerning stepparents such as third party custody, stepparent adoption and the implications of stepparent relationships on child support. Should you find yourself or know someone in a similar position, please reach out to Skip Persick at 610-278-1503 or firstname.lastname@example.org.
Two Weber Gallagher Partners Presented at the Pennsylvania Bar Association Annual Summer Family Law Meeting
During the Pennsylvania Bar Association Family Law Section annual summer meeting which took place in Orlando, Florida, two lawyers from Weber Gallagher, Carolyn R. Mirabile and Lawrence J. (“Skip”) Persick were invited to speak about trending topics in the practice of family law across the Commonwealth. Ms. Mirabile participated on a panel which presented an ethics program to family law attorneys. While Mr. Persick provided a legislative update and discussed new and pending Pennsylvania family law legislation. Both partners are also members of the Pennsylvania Bar Association Family Law Section Council which is responsible for membership, programming, legislative initiatives and business function of the Section.
Ms. Mirabile is past-president of the Montgomery Bar Association and is past co-chair and current member of the Association’s Diversity Committee. This year, Ms. Mirabile will receive the Robert E. Slota, Jr. Award in appreciation of her leadership and dedication to promoting diversity within the Montgomery Bar Association. At Weber Gallagher, Ms. Mirabile is Chair of the Family Law Group and concentrates her practice on all aspects of divorce, support, custody, property distribution and drafting of marital settlement agreements and prenuptial agreements.
Mr. Persick is co-chair of the Family Law Section’s Legislative Committee and former co-chair of the Chester County Bar Association’s Family Law section. At Weber Gallagher, Mr. Persick concentrates his practice on resolving complex family law issues such as divorce, custody disputes, child support matters and adoptions.
To find out more information about Carolyn Mirabile and Skip Persick, please visit the Weber Gallagher website.
Individuals who have been convicted of crimes often face many barriers in their lives including completing their education, purchasing a home and securing a job. Often the crime is a result of a difficult time in the person’s life perhaps while they were fighting an addiction or were in their 20’s. A prior conviction may in turn affect a parent’s ability to obtain meaningful custodial time with his or her child. Pennsylvania has just passed the new Clean Slate Act which will allow automatic record-sealing of certain offenses beginning June 28, 2019. The new Act will help individuals clear their prior records without going through a costly expungement or pardon process. Automatic record-sealing will apply to non-convictions, summary convictions and many nonviolent misdemeanors. Clearing a past criminal record will allow opportunities, including successful employment and financial independence, for a parent seeking custodial time. Our Family Law Department can discuss these options with you and assist you in your efforts.
Carolyn Mirabile Chair of Weber Gallagher’s Family Law Group Presented to the Montgomery Bar Association Family Law Section
Carolyn Mirabile, Chair of the Family Law Group, presented “The Sixteen Factors a View from the Bench and the Bar” to the Montgomery Bar Association Family Law Section on Wednesday, June 5th. She moderated and presented the program with the Hon. Carolyn Carluccio and the Hon. Kelly Wall on how to prepare and present your custody trial. They discussed how to select and prepare your witnesses, focusing on key testimony and dealing with difficult issues such as mental health and addiction.