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Uncoupling Pittsburgh
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Super proud to be named a 2017 Super Lawyer Rising Star!!

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Thank you to everyone who voted for me in the ACBA elections.Proud to announce I am now a Member of the Judiciary Committee !

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Thank you to everyone who voted for me in the ACBA elections.Proud to announce I am now a Member of the Judiciary Committee !

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Just a little reminder that I appreciate everyone’s support in the ACBA elections for a position on the Judiciary Committee. Please remind friends and colleagues to vote for me. Voting ends Tuesday!

Same-Sex Marriage – Now We Know a Little More

Last year, on the anniversary of a very significant court case which changed the laws regarding same-sex marriage, I posted about how the change in Pennsylvania and Federal law to recognize the right for individuals to engage in same-sex marriages still left a whole lot of unanswered questions about how exactly that was going to work through the court system. (See the post at https://uncouplingpittsburgh.com/same-sex-divorce-what-we-…/).

While the change in law clearly affected parties getting married prospectively, there were many unanswered questions about what would happen if a party who entered into a relationship prior to the change in law – when exactly did they get married in the eyes of the law?

Would it be when the law changed?

When they had a ceremony?

Some other point in time?

There were a lot of unresolved questions that arose in the context of either divorce or separation, or with regards to potential estate claims.

Earlier this week, Pennsylvania Superior Court issued a ruling in In Re: Estate of Stephen Carter, Appeal of Michael Hunter No.1126 WDA which will help provide us with some clarity on this issue. In the case of the Estate of Stephen Carter, at issue was whether or not Mr. Hunter, Mr. Carter’s same sex partner, would have to pay estate tax after the death of Mr. Carter, which would not be owed if they were treated as married couple. The claim was made by Mr. Hunter how as the Court to declare that the two of them had a common law marriage which should be recognized by the estate court (Orphans Court) in Beaver County, Pennsylvania. The full Estate of Carter Opinion can be found here. http://law.justia.com/…/superior-co…/2017/1126-wda-2016.html

For much of its long history, Pennsylvania courts have recognized two types of marriages in the Commonwealth: ceremonial marriage (i.e., in front of some sort of officiating individual with a recognized, issued-by-the-State certificate, probably with several witnesses, etc); and common law marriage. While common law marriage is no longer the law of the land, for many years, two parties who behaved in the manner of a husband and wife and who held themselves out to others as husband and wife, could be recognized, by law, to be husband and wife, even if there had been no formal marriage license, ceremony, etc.

While the recognition of common law marriages ended in Pennsylvania on January 1, 2005, the Commonwealth has continued to allow the recognition of common law marriages entered into prior to that date.

Please note that I do say “recognizing parties holding each other out as husband and wife” because during this period of time there was no such thing as same-sex marriage. Therefore, all of the case law and statutes speak in terms of heterosexual couples.

Just a quick note, it is a very common misconception that to be common law married, the couple must be together for period of seven (7) years. This is untrue. There is no particular time period associated with common law marriage. It has do with how the parties act towards one another and how they represent themselves to others. You can be common law married after seven (7) months or not be common law married after seventy (70) years. It just depends on how you behave.

In the instant case, Mr. Hunter began dating Mr. Carter 1996, proposed marriage Christmas of 1996, and the couple had an exchange of rings with one another on or about February 18, 1997. Their exchange of rings was nearly a decade prior to the change in law. Every year after the exchange of rings until the death of Mr. Carter, for seventeen years, the parties continued to celebrate this date as their anniversary. In addition, throughout this period of time, they lived together, shared finances, held themselves out as a couple, and in any and all ways, acted as if they were married, with the exception of the fact that the law would not recognize this.

Last year, the case came before Judge McBride of Beaver County. Mr. Hunters request to declare that the parties were married was not opposed by:
1. the Social Security Administration (who would have to pay out a benefit to the surviving spouse),

2. the Internal Revenue Service (who would not be receiving tax money if the marriage was recognized due to spousal exclusions on estate taxes), or

3. other possible beneficiary is of Mr. Carter’s estate.

Judge McBride, nonetheless, opined that it was not possible for the parties to have been common law married because same-sex marriage was not recognized at the time that the parties’ exchanged rings.

The Superior Court disagreed completely, finding that once it had been ruled unconstitutional to have prohibited same-sex couples to marry, all other portions of the statute flowing from that prohibition were, likewise, unconstitutional. As such, it was no more constitutional for the Commonwealth of Pennsylvania to fail to recognize same-sex common law marriage than it was it was to refuse to recognize same-sex ceremonial marriage.

While the laws regarding common law marriage have changed over the years, Pennsylvania does continue to recognize common law marriages that were entered into prior to January 1, 2005. As the legal analysis of the Superior Court in Carter set froth, the nature of the parties’ relationship was consistent with a marriage and met the requirements under case law to qualify as a common law marriage. The parties should, therefore, have been determined to be a married couple as of February 18, 1997, and have all rights associated therewith for purposes of Mr. Carter’s estate. The fact that they were a same sex couple should not put them in a different situation than a similarly situated heterosexual couple.

This does help to provide us with some guidance as to our determination of when a same-sex couple married under the eyes of the law, assuming they could prove common law status existing prior to 2005. However, there is still a great big question mark about what would happen to a couple whose relationship began after January 1, 2005, (when common law marriage stopped being recognized), but prior to May 20, 2014 when same-sex marriages were recognized in Pennsylvania.

During this period of time, a heterosexual couple who chose to forego a ceremonial marriage and remain ‘common law’ had other options. To the extent that the court does not recognize their common law marriage, there is a logical sense. You chose to not go do ‘A,’ but you still had the option to do ‘A,’ so we will not recognize ‘B.’

In the case of a same-sex couple, they would not have had a choice between A or B. They had no marriage option at all. It is possible that the courts would have to recognize same-sex, common law marriages during this period of time, but not heterosexual, common law marriages? Would that put similarly situated parties on different footing in the eyes of the law or were they already on such different footing that the only option we have to help cure the deficiency of our legislature and courts to not legalize same-sex marriage sooner?

As these issues continue to develop, I will continue to blog.

Thanks for reading, and please feel free to comment and share.

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Many folks are filled with dread at the mere thought of having to sit down, pull out their W-2s, and work their way through that 1040. For many people, tax season is always a headache and one they would prefer to avoid, if at all possible. For parties who…

New Year, New Resolution (Methods):

How Collaborative Divorce is Changing Divorce and Child Custody
When someone realizes that they are facing a divorce or custody dispute, they often face a moment of terror. Not just because there are now major questions looming as to how they will divide their assets or see their children, but because of the images it conjures up. Many immediately think of the tall, dark, imposing wooden panels of the courtroom walls; the stern, gavel-banging judge deciding their fate; the watchful eye of the gallery staring down the parties as their lawyers shout objections and witnesses burst into tears.

Fortunately, most of these images come more from a poorly written episodes of “Law & Order” than from reality. Even if a divorce or child custody disputes do proceeds towards litigation, typically the family court does not involve any of these sensationalized components. It’s more likely to involve modern facilities, a lack of gallery, limited objections and, frankly, I’ve never seen a judge bang a gavel once. There are, however, plenty of tears.

Nonetheless, the idea of something as personal as a separation from your spouse, or the custody of your children, proceeding in court can (and to some extent probably should) be a little terrifying.

In essence, in the traditional litigation process, a party appears in court, where they will sit quietly while someone they barely know (their lawyer) argues the facts and circumstances of their life to a person who essentially does not know them at all (the judge), who ultimately decides how they live the rest of their life—both financially and with regard to their children.
Many of the decisions in family court will be made without the parties even being present, and when they are, much like traditionally good children, they are preferred to be seen and not heard. All of this isolation from the decision making process can be quite terrifying for parties. In some ways it is even more terrifying than the specter of the dark wood panels and booming echoes of the stern Judge’s words off of the walls. It is for this reason, over the years, many parties have sought to find an alternative means of dispute resolution to assist them with their divorce and child custody matters.

One of the newer movements in alternative resolution in family law is the use of Collaborative Law techniques.

Collaborative divorce has been cited in several studies as offering parties an alternative to traditional litigation which is more confidential, faster, and potentially less expensive than the traditional path. More important to the parties themselves, I believe, is the fact that they are active participants in the collaborative divorce process.

By design, the collaborative divorce process focuses on the parties’ goals and interests, and their ability to work with one another, not just to finalize an initial agreement but also in the long term. Often the parties will have many years of co-parenting ahead of them, and a collaborative divorce can help them to communicate better, allowing them to address minor issues which may arise over the years without the need to lawyer up and run to court.

So What is Collaborative Divorce? Visit my website or keep an eye out for my next post to learn more.

For more information about collaborative law, or other means of dispute resolution, please feel free to contact me at 412-261-9900 to schedule a consultation. You may also contact me through my website at www.uncouplingpittsburgh.com.

Please note that commenting on this blog or otherwise electronically corresponding with Attorney Myers does not create an attorney/client relationship.
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