judicialsupport

Legal Writing for Legal Reading!

Archive for the tag “spouse”

Money for Injuries During Marriage Are Divisible After Marriage

The recent Pennsylvania Supreme Court case of Focht v. Focht, 613 Pa. 48, has clarified Pennsylvania case law regarding the status of a court and/or litigation settlement and/or verdict in the context of equitable distribution in a divorce. The obvious question for divorce litigants is this: if one has a potential settlement/verdict, when, if at all, is it divisible in equitable distribution?

23 Pa.C.S.A. Section 3501(a)(8) specifically states that a “cause of action or claim which accrued prior to the marriage or after the date of final separation” is not divisible in equitable distribution. The courts, in the cases of Drake v. Drake, 555 Pa. 481, and Pudlish v. Pudlish, 2002 PA Super 95, made attempts to address actions and claims during the marriage (before separation), with the question at issue being “when does an action or claim accrue exactly?”

In Drake, one of the spouses had a worker´s compensation claim which included an injury and litigation settlement for the same, occurring during the marriage. The issue for the Drake Court was to determine whether the spouse´s claim for lost future wages, which extended to a time period beyond the dissolution of the marriage, would be subject to equitable distribution. The Court ruled that as the injury and its settlement both occurred during the marriage, any funds to be paid out in that settlement were to be included in equitable distribution. In other words, the entire settlement was considered to have accrued during the marriage.

In Pudlish, the Court ruled that a claim or action does not accrue until a verdict and/or settlement is entered. Practically speaking, then, an injury and its entire litigation could take place during a marriage, but if the verdict/settlement just happened to take place after marital separation, it would be considered separate property not subject to equitable distribution.

With the Drake and Pudlish cases in full view, the Supreme Court of Pennsylvania in Focht took the opportunity to clarify the issue of exactly when an action/claim accrues by laying out what is now the definitive rule in Pennsylvania. In Focht, the husband was injured during the marriage and brought an action for his injury which was not settled until after an action in divorce was filed.

The Pennsylvania Supreme Court extended Drake, and specifically overruled Pudlish, by ruling that a settlement and/or verdict and/or any proceeds from litigation accrues under 23 Pa.C.S.A. 3501(a)(8) as soon as the party has the right to file suit. Therefore, if an injury (or similar legally actionable issue) occurs during the marriage, regardless of when it settles or reaches a verdict, any funds flowing from any said action will be subject to equitable distribution.

Originally published on April 3, 2013 in Upon Further Review and can be seen here.

Divorce, Dead Men, and ERISA

Last month Upon Further Review published an article I submitted called “Till Death Does Your Stuff Part” (which can be found here) regarding the latest development in the law regarding the interaction between divorce litigation, estate litigation, and the death of a litigant. I am now following up that article with the instant one because within a few days of publication, I received some pretty interesting and clever responses to the aforesaid article, and I would like to address them here as I think the issues they raise are food for attorneys’ thought.

One of the responses inquired about the application of the Dead Man’s Act to a divorce matter where one party dies after divorce grounds have been established. The Dead Man’s Act (42 Pa.C.S.A. § 5930) deals with the admissibility of evidence against a decedent by the parties to a contract in which the decedent was also a party. The Act serves to restrict the surviving members of a contract from presenting testimonial evidence against the decedent, also a member of the same contract, of anything that occurred before his death. The precise interpretation of the Act by the Court is complex, storied, and beyond the scope of this article. Suffice it to say here, however, that the Act does pose an interesting question vis-à-vis divorce. Generally speaking, Pennsylvania views marriage as a contract and if marriage is a contract, and one of the spouses (i.e.: parties to the marriage contract) dies, can the other party to that contract (i.e.: the surviving spouse) present any evidence against the decedent spouse under the Act? The cases in Pennsylvania on the subject are rather unclear, generally very old, and largely irrelevant as they do not account for the change in Pennsylvania law (i.e.: 23 Pa.C.S.A. § 3323(d.1) and 20 Pa.C.S.A. § 2106(a)(2)) as described in my previous article mentioned above. The cases, for the most part, involve a spouse trying to provide testimony regarding the other spouse in an attempt to elect against the decedent spouse’s estate. The cases regarding a surviving spouse’s testimony provided to attempt to elect against a decedent’s estate are nearly universal in their opinions that the testimony is inadmissible under the Act (or something similar thereto). Despite this, the cases also seem to tend toward allowing a surviving spouse to provide testimony as the existence of the marriage relationship. Under 23 Pa.C.S.A. § 3323(d.1) and 20 Pa.C.S.A. 2106(a)(2), if divorce grounds are established, the only avenue for the surviving spouse for a decedent’s spouse’s property is through equitable distribution, therefore there is a question as to whether these cases still apply.

At present, the cases do not shed light as to what sort of testimony will be permitted to be provided at an equitable distribution hearing involving a decedent spouse. A strict reading of the Dead Man’s Act would seem to imply that testimony regarding the decedent spouse by the surviving spouse is inadmissible; however, logically speaking, this seems to be obviously contrary to what would appear to be the intent of the legislature in passing 23 Pa.C.S.A. § 3323(d.1) and 20 Pa.C.S.A. § 2106(a)(2). Further, pursuant to 42 Pa.C.S.A. § 5927, in actions brought by one spouse against another to recover separate property, the testimony of one spouse is deemed “fully competent.” As above, how this interplays with the Dead Man’s Act and equitable distribution is not clear, but it would seem to lean toward allowing the surviving spouse to provide testimony.

In my opinion, I do not think it makes much sense to specifically take a divorce matter involving a decedent spouse out of estate litigation (where testimony is specifically prohibited by case law) and place it into equitable distribution only to have the testimony of the surviving spouse deemed inadmissible under the Dead Man’s Act; indeed, cui bono? It seems logical to me to discern from the legislature’s decision regarding the placement of a case into equitable distribution that it also intended testimony regarding the decedent spouse and the marriage contract by the surviving spouse to be admissible and, perhaps, to expand 42 Pa.C.D.A. § 5927 to cover all property at issue in a divorce. Otherwise, 23 Pa.C.S.A. § 3323(d.1) and 20 Pa.C.S.A. § 2106(a)(2) are simply exercises in academic futility. Please note that what I have provided above is simply my opinion; I do not know exactly how this will all pan out. It will be interesting to see how the Court resolves this seeming conflict between the 23 Pa.C.S.A. § 3323(d.1) and 20 Pa.C.S.A. § 2106(a)(2) and the Dead Man’s Act.

Before I move to the next issue, I would note that despite the 23 Pa.C.S.A. § 3323(d.1) and 20 Pa.C.S.A. § 2106(a)(2), the Dead Man’s Act appears to remain applicable regarding testimony by a surviving spouse about a decedent spouse and a Pre and/or Post Nuptial Agreement.

The next issue presented to me by the readers of Upon Further Review is the application of ERISA to 23 Pa.C.S.A. § 3323(d.1) and 20 Pa.C.S.A. § 2106(a)(2). This matter seems much more straight forward than the Dead Man’s Act. ERISA, as a Federal law, preempts Pennsylvania divorce law; there is no dispute about that. Under ERISA, once a spouse dies the terms of the insurance policy and/or pension become “locked in” as it were. Therefore, even if a party is in the midst of a divorce and the decedent spouse intended to remove the surviving spouse as a beneficiary of his/her pension and/or insurance policy but does not due to his/her death, the surviving spouse remains as beneficiary regardless of the intent. At this point, of course, the surviving spouse can attempt to receive whatever survivor’s benefits s/he may be entitled to receive. Therefore, the appropriate response by the estate of the decedent spouse is to file for an injunction against the surviving spouse to prevent him/her from receiving the benefits. It should be remembered that the estate of the decedent spouse takes the place of the decedent spouse in the divorce litigation if divorce grounds are established (if no grounds are established, the divorce litigation may no longer proceed regardless). The estate, as a result, may proceed through equitable distribution as if the decedent spouse were so doing. Consequently, through equitable distribution it would seem that the estate of the decedent spouse may still secure a Qualified Domestic Relations Order regarding the insurance policy and/or pension covered by ERISA.

The final issue raised to me was the application of Pennsylvania’s hearsay rules to equitable distribution hearings regarding a decedent spouse. Under Pa.R.E. 804(a)(4), death, perhaps obviously, is considered one of the ways a witness can be “unavailable” for testimony. Under this Rule, if a witness is unavailable, hearsay testimony of the statements made by the unavailable witness may be admissible under certain circumstances. Under Pa.R.E. 804(b)(3), a statement made by a decedent against his/her own interest may be admissible as evidence. Further, under Pa.R.E. 804(b)(4), the testimony of a dead (i.e.: unavailable) witness is admissible with regard to various issues of his/her own family history. Of course, the weight and credibility of this testimony is still to be weighed by the fact finder, but it seems that the mere death of one of the divorcing spouses is insufficient on its face for an objection based on hearsay to be sustained. However, it does seem that eliciting such testimony may be problematic; it will be interesting to see how the Court elects to rule in these sorts of cases.

I hope the above sheds some additional light on the application of 23 Pa.C.S.A. § 3323(d.1) and 20 Pa.C.S.A. § 2106(a)(2). I greatly appreciate those readers who took the time to contact me regarding these issues and I hope, through our mutual efforts, we can make the practice of Pennsylvania law clearer and more effective.

This article also appeared in the Philadelphia Bar Association’s Upon Further Review on July 11, 2011 and can be found on my website here.  This article was reprinted in Volume 33 Issue No. 3 (September 2011) of Pennsylvania Family Lawyer.

Till Death Does Your Stuff Part

While the traditional marriage rite contains the words or variations of “till death do you part,” unfortunately sometimes marriages part in divorce instead. Sometimes, however, divorce and death nearly overlap; when that happens, how does your property part?

Although the focus of this article is the latest change in Pennsylvania Estate Law which took effect at the end of 2010, it is worth pointing out the change in PennsylvaniaDivorce Law that took effect in 2004. In 2004, Pennsylvania’s legislature passed 23 Pa.C.S.A. Section 3323(d.1) which, in pertinent part, says: “[I]n the event one party dies during the course of divorce proceedings, no decree of divorce has been entered and grounds have been established as provided in subsection (g), the parties’ economic rights and obligations arising under the marriage shall be determined under this part rather than under 20 Pa.C.S. (relating to decedents, estates and fiduciaries).” In essence, if divorce grounds are established, the marital property will be divided through equitable distribution as opposed to passing through the decedent spouse’s estate as if no divorce had been filed. 23 Pa.C.S.A. Section 3323(d.1) helped clarify and streamline the division of marital property when one spouse dies, and draws a bright line when equitable distribution takes effect.

As a point of clarification, grounds for divorce are typically based on the consent of the parties under 23 Pa.C.S.A. Section 3301(c), or if the parties have been separated for two (2) years under 23 Pa.C.S.A. Section 3301(d). Therefore, if both parties have executed an Affidavit of Consent under Section 3301(c), or an uncontested Affidavit Under Section 3301(d) has been filed, and the Court entered an order approving divorce grounds under one of those sections, then 23 Pa.C.S.A. Section 3323(d.1) applies and the marital property would be divided through equitable distribution if one of the divorcing spouse’s dies. Otherwise, the property of the divorced spouse proceeds through typical estate law as if no divorce action had been filed at all.

Despite the enactment of 23 Pa.C.S.A. Section 3323(d.1), which modified divorce law, there was still the possibility of a conflict between divorce law and estate law. While 23 Pa.C.S.A. Section 3323(d.1) made it clear that equitable distribution controls the marital property of the parties after divorce grounds are established, it made no mention of the possibility of any attempt by the surviving spouse to elect against the will of the decedent spouse or attempt to collect inheritance under the terms of the decedent spouse’s estate.

In order to close this potential loophole, the Pennsylvania legislature passed 20 Pa.C.S.A. 2106(a)(2) to modify estate law to make it consistent with 23 Pa.C.S.A. Section 3323(d.1)’s modification of divorce law. 20 Pa.C.S.A. 2106(a)(2) reads: “[A] spouse shall have no right or interest under this chapter in the real or personal estate of the other spouse if: (i) the other spouse dies domiciled in this Commonwealth during the course of divorce proceedings; (ii) no decree of divorce has been entered pursuant to 23 Pa.C.S. § 3323 (relating to decree of court); and (iii) grounds have been established as provided in 23 Pa.C.S. § 3323(g).” Under 20 Pa.C.S.A. 2106(a)(2), once divorce grounds are established by the court, as described above, the entitlement of the surviving spouse to any part of the estate of the decedent spouse is completely severed, except regarding the exception described below, leaving equitable distribution the sole and exclusive remedy to the surviving spouse to any of the decedent spouse’s property. Indeed, 20 Pa.C.S.A. 2106(a)(2) functions to modify the decedent spouse’s will to revoke any provision to pass any property to the surviving spouse. The only exception to 20 Pa.C.S.A. 2106(a)(2) is when the decedent spouse specifically and explicitly indicates that his/her intention is to provide certain property to the surviving spouse regardless of the entry of divorce grounds or decree in divorce.

Finally, 20 Pa.C.S.A. 2106(a)(2) makes it clear that if divorce grounds have been established, the surviving spouse will no longer be entitled to any life insurance policies, pensions, annuities, and other sort of similar benefits of the decedent spouse.

To sum up, 20 Pa.C.S.A. 2106(a)(2) served to make estate law consistent with 23 Pa.C.S.A. Section 3323(d.1) in divorce law and, when both are applied, they each serve to ensure that, for all intents and purposes, if divorce grounds are established, the only route the surviving spouse has available to secure property from the decedent spouse is via equitable distribution.

This article also appeared in the Philadelphia Bar Association’s Upon Further Review on June 10, 2011 and can be found on my website here.  This article wasd also reprinted in Volume 33 Issue No. 3 (September 2011) of Pennsylvania Family Lawyer.

Mens Rea Applies Despite Practice of Religious Norms

In 2010, the Superior Court of New Jersey heard the matter of S.D. v. M.J.R., 2 A.3d. 412, 415 N.J.Super. 417. The Hudson County case involves the marriage of Plaintiff S.D. (“Plaintiff”) and Defendant M.J.R. (“Defendant”) and the domestic abuse that Defendant inflicted upon Plaintiff per his rights and privileges within the Islamic faith. Both the trial court and Superior Court in this matter analyzed the relationship between the legal concept of mens rea and Defendant’s state of mind when acting within the scope of his religion.

Plaintiff and Defendant are both Muslims from Morocco. Their marriage was arranged by their respective families in 2008 when Plaintiff was 17 years old. On July 31, 2008, Plaintiff and Defendant were married. After three months of marriage, Defendant asserted “his rights” as a Muslim husband in four separate incidents.

The first incident occurred when Plaintiff was unable to sufficiently cook a meal for Defendant’s friends. Once Defendant’s friends left, Defendant proceeded to inflict a punishment upon Plaintiff for her failure to cook what he believed was an adequate breakfast by pinching her on every part of her body for over an hour. His “punishment” left several bruises which were documented by the local prosecutor’s office weeks later. Defendant indicated to Plaintiff that the violence he was inflicting was to “correct” her behavior.

The second incident occurred when Defendant, knowing Plaintiff was not a skilled cook, asked her to prepare a dinner for friends. Plaintiff informed Defendant that she could not cook the meal he requested to his satisfaction. He then asked his mother to cook the meal instead (Defendant’s mother had moved in with them shortly after they were married). Plaintiff and her mother-in-law had an unpleasant exchange. When Defendant learned of this exchange, he proceeded to again inflict a punishment upon Plaintiff. This time he stripped Plaintiff of her clothes, and pinched her breasts and her vaginal area. Plaintiff tried to flee but Defendant locked the door so she could not escape. Defendant explained to her that she was his wife and she must do whatever he told her. After his punishment, Defendant then forcibly had sex with Plaintiff. This episode lasted several hours.

About a week later the third incident occurred after Plaintiff got into an argument with her mother-in-law. The argument got so heated that Plaintiff locked herself in her bedroom. Defendant removed the latch from the bedroom door, entered the bedroom, and proceeded to engage Plaintiff in nonconsensual sex. Subsequently, after some unrest, Plaintiff attempted to leave the apartment, but Defendant refused to allow her to leave and instead, pulled her back in and physically assaulted her by repeatedly slapping her in the face causing her lip to swell and bleed. Defendant then left the room which allowed Plaintiff time to escape the house through a window. Once outside, Plaintiff encountered a woman who noticed her injuries and called the police. The police took her to the hospital and documented her injuries. A police investigation also established that her bed sheets and pillow cases were stained with what appeared to be blood.

Subsequent to the above three incidents, Plaintiff moved out of the marital home. During this time it was discovered Plaintiff was pregnant with Defendant’s baby. In order to try and reach a remedy to their marital issues the Plaintiff, Defendant, and their Imam had a meeting. At the meeting, Plaintiff and Defendant reconciled on the following conditions: that Defendant would cease mistreating Plaintiff, that they both move back to Morocco, and that they live separate from Defendant’s mother.
On the night of their reconciliation, in January 2009, Defendant again engaged in nonconsensual sex with Plaintiff three times. Defendant continued to do so on subsequent days. During this period, Plaintiff was deprived of food and a telephone.

Defendant explained to her that according to Islamic faith, he can do anything he pleases to his wife and she should submit to him. Defendant eventually became dissatisfied with Plaintiff and performed an Islamic divorce in the presence of the above-mentioned Imam.

Ultimately, a complaint was filed in Superior Court and Plaintiff attempted to secure a restraining order against Defendant. While these domestic matters were proceeding, a parallel criminal matter was also pending. During the litigation of the above matters, the Imam confirmed that according to Islamic law “a wife must comply with her husband’s sexual demandsÉ The Imam did not definitively answer whether under Islamic law, a husband must stop his advances if his wife said Ôno.’”

The Judge in the restraining order matter found that Plaintiff had proven by a preponderance of the evidence that Defendant engaged in harassment and assault. He further found that Plaintiff had not proven criminal restraint, sexual assault, or criminal sexual contact. To that end, the Judge specifically stated that:

This court does not feel that, under the circumstances, that this defendant had a criminal desire to or intent to sexually assault or to sexually contact the plaintiff when he did. The court believes that he was operating under his belief that it is, as the husband, his desire to have sex when and whether he wanted to, was something that was consistent with his practices and it was something that was not prohibited.

Therefore, in the Judge’s view, Defendant did not act with criminal intent. Finally, despite having found acts of domestic violence, the Judge found that issuing a final restraining order was unnecessary as the incidents described above were merely a “bad patch” in their marriage (despite the fact that the incidents occurred only three months into their marriage, and that they never actually ended), Plaintiff’s injuries were not severe, the parties had intentions to divorce and cease living with one another, at least one of them intended to move back to Morocco, and, he assumed, the parallel criminal matter would resolve the outstanding issues. Plaintiff appealed the ruling.

On appeal, the court first looked at the purpose and intent of the New Jersey Prevention of Domestic Violence Act. At the outset, the court found that the legislature elected to pass the Act, even though criminal statutes could also apply, because of the special and unique nature of domestic violence. Further, the court noted that sexual assault can occur when one engages in sex without the consent of one’s spouse. Most importantly, the court noted that neither the sexual assault statute nor the criminal sexual contact statute, applicable to the instant matter, specified what mental state must be demonstrated for an alleged perpetrator of sexual assault and/or criminal sexual contact. The court then clarified that when a state of mind is not specified, it defaults to “knowingly.” In essence, as the court observed, “criminal intent is generally an element of crime, but every man is presumed to intend the necessary and legitimate consequences of what he knowingly does.” (Quoting Reynolds v. United States, 98 US 145 (1878).)

The court then proceeded to provide a brief historical review of situations where religious norms conflicted with the law. Specifically, the court highlighted the Mormon practice of polygamy, the Seventh Day Adventist practice of avoiding work on a Saturday, and the American Indian practice of sacramental ingestion of peyote. In the final analysis, the court affirmed the long-established law as set forth by many decades of United States Supreme Court precedent: “valid, generally applicable, and neutral laws may be applied to religious exercise even in the absence of a compelling governmental interest,” quoting Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990). The court further determined that “[t]he only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections.” (Quoting Smith above.) The court decided that the Smith case appears to control as the laws defining the crime of sexual assault and criminal sexual conduct are neutral laws of general application.

Acknowledging that the legislature recognizes the serious nature of domestic violence, and that Defendant violated neutral laws of general application when he physically and sexually assaulted Plaintiff, the court decided that there was a basis for a finding of domestic violence in the instant matter. The court further acknowledged that the trial judge in the matter also correctly found that Defendant had assaulted and harassed Plaintiff in violation of the Prevention of Domestic Violence Act.

The appellate court rejected the trial judge’s conclusion that Defendant’s intention to act within the norms and expectation of his Islamic faith somehow resulted in Defendant having no mens rea to commit a crime and/or violate the Prevention of Domestic Violence Act. From a practical point of view, the court was greatly distressed by what it believed to be an “unnecessarily dismissive view” of domestic violence on the part of the trial judge. Further, the court was concerned that the trial judge believed Muslim norms were not actionable, simply assumed the criminal court judge would take a certain action without following up to ensure that he did, presumed that the parties’ separation and/or divorce would resolve the abuse, and failed to sufficiently consider the impact the imminent birth of the couple’s child would have on the situation. Based upon all of the above, the court reversed the trial court and remanded the case for entry of such an order.

In the final analysis, the matter of S.D. v. M.J.R., 2 A.3d. 412, 415 N.J.Super. 417 presents attorneys, judges, and, of course, litigants, with the fact that practicing the religious norms of one’s faith cannot undercut the mens rea requirement of a criminal and/or domestic abuse statute. Knowingly committing an act of abuse, as defined by a neutral and generally applicable statute, is enough to hold one liable or guilty of the act regardless of what his religious imperatives are.

This article also appeared in the Philadelphia Bar Association’s “Upon Further Review” on April 13, 2011 and can be found here and on my website here.

Divorce After Death?

Here is yet another an article, by Adam S. Bernick, Esquire, who is of counsel to my firm, providing some sound advice and insight into the estate planning process.  This article can be found on my website here and was originally published in Upon Further Review” on December 8, 2009, and can be seen  here.

Post Navigation