Legal Writing for Legal Reading!

Technical Answers

Each Spring since 2000, I have held a seminar at Bucks County Technical High School giving high school students in Social Studies / Civics classes an “inside look” at the judicial branch of government and, of course, I look forward to doing it again in 2014!

When I go to BCTHS, I am invited to speak by my friends, and BCTHS teachers, Bob Woehr and Kelly Woehr.  I offer the seminar to Bob’s various social studies classes, of which you can learn more about here.  Recently, due to the questions raised by the students in Kelly’s Women’s Studies class, and the fact that her students remember who I am, her students decided to prepare a list of questions for me to answer to help them understand family law a little better.

Of course, I jumped at the chance to answer these questions; indeed many were insightful.  Once I finished my answers, I realized that, first of all, my answers were on the long side, but, more importantly, they also may be interesting to people other than just Kelly’s class to help them gain some insight into family law.  Therefore, I decided to post my answers here to my blog.  I hope they are helpful not just to Kelly’s class but to anyone who reads them.

I invite Kelly’s class to ask me follow up questions, or even more and different questions, and I will be happy to try and answer them.  If any of my readers have any questions, please submit them to me and, if I get enough of them, I will try and post a follow up to this post with more answers to your questions.

Here is my response to Kelly’s students’ questions: 

Thanks a lot for thinking of me and giving me the opportunity to answer your various questions.  I always enjoy coming into your class as a guest speaker and I appreciate that you remembered me.  You all have many questions but, as they all seem to have similar themes, I thought I would answer them all at once instead of one at a time.

When people divorce in Pennsylvania they can choose to do it through the “no fault” or “fault” processes (a third process exists for persons who are committed to a mental institution but that is extremely rare).  Before 1980 all divorces had to be “fault” divorces.  A fault divorce is one where one party claims the other committed a marital fault.  Marital faults include adultery, abuse, and abandonment.  In order to get a divorce someone had to be the victim of a fault and innocent of committing one, which is to say that the victim must not have committed a fault his/herself.  Since 1980, the Pennsylvania legislature passed the law allowing “no fault” divorce, which allows people to divorce without needing to prove a fault.  People seeking divorce need only show that they no longer wish to be married and either consent to it voluntarily through filing affidavits or wait to be separated for two-years.

Divorce, obviously, involves dissolving the marriage relationship, but it also includes dividing up the property in the marriage, which generally includes real estate (e.g.: a house), cars, investments, bank accounts, and personal property (e.g.: people’s “stuff”).  It also involves dividing up people’s debts and liabilities.  Sometimes, unfortunately, a marriage has more debt than property, which means no one really “wins” much money or “stuff”.  A court divides the property and debts up in an equitable fashion between the parties, which is another way of saying as fairly as possible.  When a court divides the property, it considers, among other things, the following things:

  • The quantity of marital property;
  • Who brought what property into the marriage and what it is worth;
  • The ages of the parties;
  • The health of the parties;
  • The length of the marriage;
  • The opportunities for the parties to earn money following the divorce (which is to ask, in other words, “who will make more money after divorce and how much more?”);
  • The standard of living during the marriage;
  • The work history and educational level of the parties;
  • Who has primary custody of the children (if any);
  • Whether one party elected to stop working to be a homemaker and/or child caretaker.

No one factor is determinative; the court looks at all of these, and more, together, before a decision is made, and balances them all out to try and make the parties come out of their marriage as fairly as possible.  Sometimes the court divides the marital property in half equally.  Other times, the court may give one party more money than the other.  Either way, it is for the purpose of ensuring the parties come out of the marriage as fairly as possible.

Divorces certainly cost money and some become extremely expensive.  The various courts charge fees, which all but the most destitute must pay, to file papers.  Also, each party to a divorce often, and should, hire a lawyer, and lawyers charge a fee for their services.  There are sometimes other expenses to secure evidence and other information.  These expenses are in place, respectively, to help fund the court, because being a lawyer is a profession for which payment for services is deserved, and because other services also have a value which must be paid.

            Sometimes, the parties’ finances are so unequal that the court has to order alimony in order to balance out the finances.  Alimony is money paid by one former-spouse to the other.  Alimony can be as short in duration as a few months of payments to payments for the rest of one’s life.  Alimony is also a way to ensure property can be divided properly.  For example, what if the party who has to share his/her assets with the other does not have it sufficiently liquid to do it?  In other words, what if the party who owns the house cannot sell it but still must give his/her spouse his/her share of the house’s value?  One way to facilitate this is the payment of alimony.

Many times children are involved in a divorce and the court has to decide how custody of those children is to be allotted between the parents.  Of course, children are also often born to unmarried persons.  Regardless of whether children are born to married or unmarried parents, the court must determine what sort of custody arrangement is best.  A court may only order who should/can have custody of children until the children turn eighteen (18) years old or graduate from high school (which ever occurs last), after that the children are emancipated and considered to be adults who are legally free from the custody and control of their parents (obviously, this does not necessarily apply to severely disabled children).  The court creates a custody schedule for the children and their parents that it believes is in the “best interests” of the children.  The court has multiple factors to consider when it decides what is, or is not, in a child’s best interests, such as, among other things:

  • Who has been the primary caretaker over the course of a child’s life;
  • Quality of school districts;
  • Quality of houses;
  • Quality of home life;
  • Criminal background of the parties;
  • Whether a child has siblings and where they live;
  • Distance between the parents;
  • Involvement of extended family;
  • Quality of parenting;
  • Whether a party has been abusive;
  • Respective finances of the parties;
  • The age of the children;
  • The age of the parties;
  • Where the children want to live (especially for older children);
  • How well the parties get along.

Just as with divorce above, no one factor is determinative; the court looks at all of these, and more, together, before a decision is made.  Barring very extreme circumstances, all parents are entitled to spend time with their children in some way.  Sometimes, even abusive or otherwise terrible parents, although they would not receive custody, will be awarded some sort of supervised visitation so that parental contact can be ensured.

Remember, the court must determine what is in the best interests of the child and it is presumed by law that contact between a child and his parent, no matter how minimal or supervised, is almost always in a child’s best interest.  Obviously, a court could determine that contact with a parent is detrimental to that child and completely restrict a parent from his/her own child, but this is a very rare situation.  Indeed, other than in the case of adoption (which is voluntary), only in extreme circumstances will a court involuntarily terminate a parent of all his/her rights to his/her child(ren).

The law specifically states that the court cannot discriminate between men and women when making decisions for property division in divorce and where children live in a child custody case.  Obviously, everyone has his/her own biases, including judges, but the law is clear in that discrimination between the genders is unlawful.  Many of you observed that it seems women tend to get more money out of a divorce and get primary custody of children more often.  I agree with your observations but that does not necessarily mean the courts discriminate in favor of women or that the court granted the money and/or custody because the party was a woman; there are other factors involved to consider.  The fact is, no matter how far feminism has gone in our culture, women still tend to, more often than not, perform the traditional gender role of being homemaker and/or the primary caretaker of children.  Even women who work outside the home for a living often tend to sacrifice their income and/or career options to work a job with hours and responsibilities flexible enough to enable them to care for their children; conversely, men still, generally speaking, have not assumed the role of homemaker or make the same sort of sacrifices women often make for their children.  Therefore, when people divorce, the woman is often the one with the lower salary (or none at all), the inferior opportunity for greater income after divorce, and/or the inferior financial position after divorce.  As a result, an equitable (i.e.: fair) distribution of property after divorce would be to give these women more money and/or alimony.  In the same way, women tend to be the primary caretakers of their children and, therefore, that tends to say the same after the parents to a child fall into a custody dispute.  Of course, it is worth mentioning, if a man is the one with the lower salary (or none at all), the inferior opportunity for greater income after divorce, the inferior financial position after divorce, and/or the primary caretaker of his children, then he would get a similar result as that of a woman in the same situation.

Many of you asked about abusive relationships.  The vast majority of the abuse cases I have had and seen are those of men abusing women, but it is not uncommon for women to abuse men.  Unfortunately, due to male pride, a woman’s abuse of a man often goes unreported.

Unfortunately, a child must abide by the court when it determines who the child must live with and when.  The older a child becomes, the more power that child has over where s/he lives, and his/her choice becomes much more determinative.  It is not uncommon for older children to refuse to comply with a custody order and, in my experience, the police will not force a child to leave one house and go to another.  Children also have the option of contacting the police and/or their local Department of Human Services (sometimes called Children and Youth Services) to get relief from a bad situation at home.  These government agencies can advocate for a child where his/her own parents do not or cannot.  Of course, the downside is that the involvement of these agencies means a child may be placed into foster care, which may mean a stranger’s home, and will not be able to extricate him/herself from it for quite some time until a court orders otherwise.

Finally, there were some questions which were somewhat random so I will answer them here:

  • I have dealt with many cases involving inappropriate sexual conduct with children but I do not think I have ever handled, or even heard of, a case where a woman sexually molested a child.  Instead, in these terrible situations, the woman will often be the one who turns a blind eye to the abuse committed by a man instead of the one doing it herself;
  • The most common type of case I see in my practice is a family law case (divorce, custody, and/or support);
  • Cases are settled out of court about 80% of the time, however family cases are settled out of court at a significantly lower rate;
  • The Judicial System is a system developed over centuries of time and it has its advantages and disadvantages like anything else.  I would say that I think in most cases justice tends to be done.  I think its biggest flaws are that lawyers can manipulate rules of procedure in order to avoid actually dealing with the substance and merits of case, and that money can cause way too much of an imbalance between what the parties can (or cannot) afford to do when litigating.

Thanks again for taking the time to ask me questions.  Please feel free to send me more if you have them and I hope to see you soon in Mr. and/or Mrs. Woehr’s class!

James W. Cushing, Esquire



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2 thoughts on “Technical Answers

  1. Robert Woehr on said:

    Wow, that was awesome.


  2. Pingback: A Collection of Family Law Writings by James W. Cushing, Esquire | judicialsupport

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