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Family Law: A Changing Face of 'Family'

by Lynne Z. Gold-Bikin

Spring 2003, Vol. 66, No. 1

When I started practicing family law in the 1970s, there was little respect for those of us in this field. There was only fault divorce, no court-ordered alimony and the awarding of custody to the mother, using the tender years presumption. There was no such thing as grandparent visitation, and child support was awarded on a case-by-case basis. Property belonged to the titleholder.

Where We Were
In that era, we had recently eliminated adultery as a crime, and alienation of affection suits had just been written out of Pennsylvania law. If a litigant filed against a spouse on the grounds of adultery and named the person with whom the adultery occurred, that person, called a co-respondent, could never marry the adulterous spouse while the filing spouse lived. In other words, if a wife filed against a husband claiming that he had committed adultery with Mary Smith and if wife was successful in having the divorce granted on the grounds of adultery, husband and Mary Smith could never marry during wife’s lifetime.

To get a divorce in Pennsylvania, a litigant had to prove fault. For those parties who could agree on the terms of the divorce, one party would be the plaintiff and generate a tale of indignities sufficient to pass muster with the court-appointed master, and the other party did not appear. Most divorces of this sort occurred with a written document, setting forth the tale of woe, also known as “canned” testimony.

For those who did not have grounds for divorce and were not willing to be held up by the other party, there were three options: relocate to a more favorable state (Pennsylvania was one of the last few states in the United States to adopt no-fault divorce); give up sufficient assets to convince the other spouse that it would be foolish to fight (in many cases it was 100 percent of all assets except the business); or live alone or in sin and hope that better days were coming. If the party who wanted the divorce did have grounds, the grounds to be proven were adultery, bigamy, cruel and barbarous treatment, desertion for two years or more, or indignities. Detectives had a busy practice, and many believed that all one had to do to practice family law was to have a good detective and a camera.

The way to force a divorce was to have a detective follow the recalcitrant spouse and suspected lover, see them smooching and then going into a building together for a period of time (opportunity and inclination), at which time the moving spouse would petition the court to award support. This would then lead to a settlement rather than having the cheating spouse’s dirty laundry aired in public.

Property was divided according to title. If husband owned the car in his name, the car belonged to him after the decree. Few trials ever reached the courtroom, as they occurred before the settlement master rather than a judge.

In 1980, after many years of trying, the legislature finally passed a comprehensive Divorce Code, adding two new grounds for divorce: a mutual consent no-fault provision, allowing a divorce ninety days after the filing of the divorce complaint plus an affidavit indicating that the marriage is irretrievably broken; and a provision for unilateral no-fault filing after a three-year separation. Additionally, the Pennsylvania court added alimony, the forty-ninth state in the United States to do so. Equitable distribution became the basis for the division of assets rather than the title concept that had governed Pennsylvania for so many years.

Equitable distribution was a totally new concept because it dealt with a definition of marital property as all property acquired from the onset of the marriage up to the date of separation. Unlike other states, it stopped the acquisition of marital property at the date of separation and did not go to date of trial, although valuation of existing property went to the date of trial.

Additionally, certain property acquired prior to the onset of marriage, gifted and inherited property, was not to be held as marital property. Immediately, suits began claiming that the Divorce Code could not be retroactive to marriages that had occurred prior to the effective date of the Divorce Code on July 2, 1980. The Supreme Court quickly dealt with that issue, and all marriages, regardless of when they occurred, were to be governed by the new Divorce Code. Bacchetta v. Bacchetta, 498 Pa 227, 445, A.2d 1194 (1982).

Custody disputes were also going to change. As a result of the Equal Rights Amendment in Pennsylvania, fathers began challenging the concept that mothers should always win custodial disputes. A father, in order to get custody, previously had to prove the mother unfit. With the introduction of the Equal Rights Amendment, both parents would allegedly come in on an equal footing.

The more radical change was to occur in 1982 with the passage of the Joint Custody and Grandparent Visitation Act. 25 Pa.C.S.A. §5301, et. seq. As of 1982, the courts would have the power to award both joint physical and joint legal custody. Joint physical custody did not mean equal physical time, but meant a sharing of the physical access to the child. The word “visitation” began to fade from use and “partial custody” became the catchphrase. The radical concept, of course, was joint legal custody, which meant that both parents would have equal input into the major parenting decisions. This concept was to be imposed on two people who previously could not agree what toothpaste to use in the bathroom. Now they would have to consult on all major parenting decisions, and neither one could unilaterally impose his or her will or bills on the other party.

More changes were coming. In 1986, as a result of a portion of the new ERISA Act, each state, Pennsylvania included, was to begin using guidelines for the purpose of imposing child support orders. The concept was now to be that all people similarly situated were to be treated similarly.

Pennsylvania had to generate guidelines that would treat all parents coming in to court and asking for child support the same as other parents with the same net income. Pennsylvania chose to use the net income of both parties in order to impose the new child support guidelines. Other states have used gross income or only the income of the payer spouse. Pennsylvania went a different direction.

Many lawyers panicked, believing that the guidelines would become so dispositive that there would be no lawyering. This was not to be, since the lawyering now became important in determining what income to plug into the guidelines. Additionally, when the guidelines were first imposed they only went up to $10,000 per month net income for both parties. For the higher-earning parties, the court still had the ability to decide what child support should be imposed.

At that time, after many years of case law, the courts had the power to impose an obligation to pay for a college-bound child who was capable and willing to go to college, where the payer had the ability to pay. The Supreme Court ruled, in Blue v. Blue, 532 Pa. 521, 616 A.2d 628 (1992), that there was no obligation for college, and the legislature scrambled to change this by statute.

In 1993 the legislature imposed the obligation for the payment of college on all separated and divorced parents. 23 Pa.C.S.A. §4327. A challenge to that statute was made and, again, the Supreme Court intervened based on the unequal protection argument that this obligation was imposed only on separated and divorced parents and, therefore, could not withstand a constitutional challenge. Curtis v. Kline, 542 Pa. 249, 666 A.2d 265.

Where We Are
In the twenty-first century, many changes occurred. First, the Divorce Code was amended in 1988 to change the three-year separation no-fault provision to a two-year separation. 23 Pa.C.S.A. §3301(d)(1)(ii). Additionally, the courts have had many years to deal with the Code, and case law was evolving as to how alimony was to be treated. The bar to providing alimony to someone living with a member of the opposite sex, to whom they were not related, did not change, but cases began to come into court claiming that the party was gay or lesbian and alimony should be barred because they were living in a sexual relationship with a member of the same sex. The courts were not interested in reinterpreting the Act to bar same-sex relationships.

A discussion occurred in the law over whether or not alimony was to be rehabilitative. Ultimately, the courts began to look at a threshold in determining whether alimony was appropriate at all. Did the dependent spouse have sufficient property after the divorce as a result of equitable distribution so that alimony was not needed?

Also, the support guidelines were amended to include parents whose net income was as high as $15,000 per month net. The challenge then became what should occur for a family whose net monthly earnings added up to more than $15,000 per month. In 2002, the Supreme Court held, in Mascaro v. Mascaro, 803 A.2d 1186 (Pa. 2002), that the support guidelines would apply. In other words, once the court determined the child support amount, the dependent spouse would be entitled to thirty percent of the net difference between his or her income and that of the other spouse. If there were no children, the alimony pendente lite or spousal support would be forty percent of the net difference between the two incomes. Needs became irrelevant.

Support guidelines mandating a certain amount of support based on the parents’ net incomes was a radical concept. Suddenly, lawyers were scrambling to prove the actual income of each party rather than just arguing on legitimate needs. With the advent and adoption of the guidelines, legitimate needs of children suddenly had no meaning when the family earned less than $15,000 net. When the family income is greater than $15,000, the Supreme Court said, in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), that it is necessary to look at income and needs of the children before entering an order, but spousal support is just income based.

Parties began to look at mediation as an alternative for resolving their disputes. Many couples, rather than facing the trauma and uncertainty of a court proceeding, opted to attempt to mediate their cases and have them resolved by meetings with and without lawyers to draw up their agreements.

Binding arbitration, and even “rent-a-judge,” became other options. Introduced in the 1990s, the concept of “alternative dispute resolution” was an important method for avoiding lengthy, long-delayed and expensive court proceedings.

Because of the Equal Rights Amendment and also the strong “father’s movement,” custody cases became important in the courts. More and more fathers were demanding primary custody or equal physical time with their children. Litigation over the meaning of joint legal custody and the right to have input in major parenting decisions began to appear in the court system. Originally, in order to obtain a modification of the custody order, one needed a “change of circumstances.” Later, case law then determined that a change of circumstance was no longer necessary, and litigants began filing custody cases to modify whenever they were unhappy with the result of prior hearings or agreements. Karis v. Karis, 518 Pa. 601, 544 A.2d 1328 (1988).

The introduction of complex litigation in divorce cases became important after a recognition that equitable distribution required a three-step approach: identify an asset, value an asset, and divide an asset. A new industry grew up around divorce cases. Divorces now required accountants to determine cash flow, business evaluators to determine the valuation of business interests, actuaries to determine values of pensions, which now became a marital asset, and appraisers to determine the value of personal property.

Also, once the courts ruled that pensions were simply a deferral of income earned during the marriage and were, therefore, marital assets, military pensions became an issue. While the military attempted to claim that military pensions were necessarily the property only of the military person, the federal government passed legislation to permit military spouses to share in that which had been earned while they followed their spouses from one military base to another or lived alone while they waited for their military spouses to return from service.

Grandparent visitation has become an important aspect in custody cases. Prior to 1982 there was no basis for the court to grant grandparents partial custody. After 1982, under certain circumstances, the courts had that power. Where the child had lived with the grandparents for one year or more, where the children of the grandparents were divorced, or where the child of the grandparents requesting partial custody was deceased, the courts then had power to grant grandparents partial physical custody. 23 Pa.C.S.A. §§5311, 5312.

In 1996 an additional statute was promulgated, providing that grandparents could obtain custody of children under certain circumstances. 23 Pa.C.S.A. §5313. The Supreme Court of the United States ruled in Troxel v. Granville, 530 U.S. 57 (2000), that a statute granting grandparents the right to seek custody in Washington was unconstitutional because it was too broad. The case indicated under what terms grandparents could be awarded custody. Thus far, the Pennsylvania statute has neither been challenged nor been overturned.

Where We Are Going
Prior to September 2002, only one member of a same-sex couple could adopt a child. As a result of a Supreme Court ruling, now both parties in a same-sex relationship can adopt a child. In re: adoption of R.B.F., 803 A.2d 1195 (Pa. 2002).

The Supreme Court has now ruled that when a gay couple separates, the non-biological parent has a right to ask for partial custody of the child. T.B. v. L.R.M., 567 Pa. 222, 786 A.2d 913 (Pa. 2001).

As family law continues to evolve, what additional changes can we expect? Will Pennsylvania recognize gay marriages? Anything is possible but probably not likely in light of The Federal Marriage Act that Pennsylvania adopted. 23 Pa.C.S.A. §1103.

Surrogacy will obviously be an issue for the future. With more and more parties utilizing in vitro fertilization or sperm donors, and with the continued scientific improvements, it is not unreasonable to predict that children may ultimately have five parents: the sperm donor, the egg donor, the surrogate who carries the fertilized egg, and the adopting couple. What we read about in Brave New World, published in 1937, is now reality. Children that were created in a test tube are now in their twenties.

Will there be a return to fault divorce only? Various states have adopted “covenant marriage,” which requires parties to choose whether they want a “regular marriage” or a “covenant marriage.” In a covenant marriage, the parties agree to certain types of counseling before they can even get a divorce, and then the divorce will only be entered on the grounds of fault.

There is a movement to preserve marriage and to make divorce more difficult. In some arenas, there are movements to delay people getting a marriage license until they have gone to pre-marital counseling.

As family law continues to evolve, more and more different types of families will develop. Today, fifty percent of the children in this country are being raised in what would once have been called “non-traditional” families.

The face of the American family has changed. It now includes not only the traditional “Mom and Pop” family but other families such as “Mom and Mom,” “Dad and Dad,” “single Mom,” “single Dad,” “Mom and boyfriend,” “Dad and girlfriend,” and “Grandparents raising children.” All of these families can successfully raise children.

Attitudes toward these families are changing. The fact that gays and lesbians are adopting children, especially children that would not otherwise have been adopted, is a major change. Children that would otherwise have languished in foster care, or even orphanages, are now being adopted. Organizations such as the National Adoption Center are placing previously hard-to-place children, children whose backgrounds include abuse and neglect, and those children who have special needs.

As the face of the American family changes, so will the law have to change to keep up with it. As the buggy-makers found when the train came through, they could not stop the train. If they didn’t adjust to keep up with it, when the train left the station, the buggy-makers would be left behind. As family law continues to evolve, practitioners must make sure they are on the train as it leaves the station.