Understanding Annulments

For many married individuals in the Commonwealth of Pennsylvania, the pathway to legally ending a marriage is through divorce. However, that’s not the only way. In addition to divorce, a marriage in Pennsylvania can also be dissolved through what is known as an annulment. This is a term which many are familiar with, but few actually understand.

Unlike an action for divorce, a court ordered annulment is a statement that the marriage itself is void or invalid and, in some circumstances, has the effect of establishing that the marriage never occurred. Not all annulments are made the same, however, and there are two types of marriages which can be annulled: those which are void and those which are voidable.

A void marriage is one that was never valid. As a result, this type of marriage must be deemed annulled. There are four categories specified in the Pennsylvania Divorce Code at Section 3304 which dictate that a marriage be deemed void. Those four circumstances include:

  1. If either party to the marriage was married to another person at the time of the second marriage;
  2. If the parties to the marriage are related by blood;
  3. If either party had a serious mental illness or was deemed mentally incompetent at the time of the marriage such that that party could not have provided legal consent to the marriage; and/or
  4. If either party to the marriage was under the age of eighteen (18) at the time of marriage.

On the other end of the spectrum are voidable marriages. Voidable marriages are marriages which can be annulled but the decision is ultimately based on the circumstances of the individual relationship. The Pennsylvania Divorce Code, at Section 3305, specifies five separate categories of marriages which are voidable and therefore subject to annulment by either parties filing such an action. It is important to remember that these marriages, unlike void marriages, are not automatically annulled by operation of law. The categories for a voidable marriage include:

  1. Where either party to the marriage was under 16 years of age, unless the marriage was expressly authorized by the court.
  2. Where either party was 16 or 17 years of age and lacked the consent of parent or guardian or express authorization of the court and has not subsequently ratified the marriage upon reaching 18 years of age and an action for annulment is commenced within 60 days after the marriage ceremony.
  3. Where either party to the marriage was under the influence of alcohol or drugs and an action for annulment is commenced within 60 days after the marriage ceremony.
  4. Where either party to the marriage was at the time of the marriage and still is naturally and incurably impotent, unless the condition was known to the other party prior to the marriage.
  5. Where one party was induced to enter into the marriage due to fraud, duress, coercion or force attributable to the other party and there has been no subsequent voluntary cohabitation after knowledge of the fraud or release from the effects of fraud, duress, coercion or force.

If you’re a party to a marriage which would qualify to be annulled, either you or your spouse has the right to bring an action for annulment. It is worth noting that an annulment has no direct or immediate effect on custody or child support. If you are considering terminating your marriage and want to learn more about your rights and options, call today for a free consultation at (215) 947-6240 or contact us online.

Legal Disclaimer: The contents of this website are intended solely for informational purposes. They neither constitute nor imply an official legal opinion on behalf of Howland, Hess, Guinan, Torpey, Cassidy and O’Connell, LLP, nor do they establish an attorney-client relationship of any kind. Howland Hess O’Connell encourages all readers to seek and consult professional counsel before acting upon the information contained on this site.

Pennsylvania Reduces Waiting Period for Divorcing Couples

Through House Bill 380, Pennsylvania has shortened the time period required for married couples seeking a divorce to live separately.

The Bill, which was signed by both the Pennsylvania Senate and the House of Representatives on September 27, 2016, allows courts overseeing a divorce to grant a divorce when a spouse files a complaint alleging the marriage is irretrievably broken accompanied with an affidavit that the parties have lived separate and apart for one year.

In order for the divorce to actually be granted based solely on these grounds, however, the defendant cannot deny any allegations in the affidavit that must accompany the complaint for divorce filed by the moving party. Even if the other side to the divorce denies an allegation in the affidavit or complaint, however, a court may still grant a divorce as filed if the court is satisfied that the parties have been living separately for at least one full year and the party seeking the expedited divorce demonstrates to the court that the marriage is irretrievably broken.

Prior to this new legislation, if one party to a divorce did not consent, there was a two year waiting period. Of course, in the alternative, if both parties consented to the divorce it could be granted in as little as 90 days.

This new law will go into effect 60 days after Governor Wolf signs the bill into law and is geared to streamlining the process of a divorce and reducing the emotional and financial burden a divorce has on the parties involved.

 

It is important to note this law does not impact divorces already filed and pending. If you have questions regarding a potential divorce or a related matter, the family law attorneys at Howland Hess O’Connell are available to take your call today, or feel free to contact us through our website.

 

Legal Disclaimer: The contents of this website are intended solely for informational purposes. They neither constitute nor imply an official legal opinion on behalf of Howland, Hess, Guinan, Torpey, Cassidy and O’Connell, LLP, nor do they establish an attorney-client relationship of any kind. Howland Hess O’Connell encourages all readers to seek and consult professional counsel before acting upon the information contained on this site.

The Issue of Pet Custody

When we hear about a divorce, most people’s immediate thoughts go to issues such as child custody and property settlement. But for families with pets, many who consider these pets as parts of their family, there is another issue: what to do in terms of custody of the animals. [Please take special note that this article deals with the issue of contested custody/ownership of an animal between former spouses or partners, not an agreed upon property settlement.]

The law in Pennsylvania is quite clear: pets are “chattel.” What this means is that pets, like your beloved Labrador Retriever or Himalayan kitten, are viewed under the law as “personal property” in a light analogous to a kitchen table or television. Riley RevisedPennsylvania is certainly not alone in this stance, as pets are considered personal property in many states. Pennsylvania applies what is known as an “equitable division” scheme for distributing personal property upon divorce. The court’s goal in an equitable division is to be fair, which means the division does not need to be equal.

While Pennsylvania courts are generally in favor of child custody agreements worked out between spouses when it’s in the best interest of the child, if a divorcing or separating couple attempts to draft an agreement regarding shared custody of a pet, it is unlikely that such an agreement will be upheld. For example, in DeSanctis v. Prictchard, the Pennsylvania Superior Court invalidated a provision in a property settlement agreement between a former husband and wife providing the wife custody of the couple’s dog while the husband received visitation. The Court, in explaining its decision refusing to enforce any custody arrangement regarding the pet, stated that enforcing such a custody agreement would be “analogous, in law, to a visitation schedule for a table or a lamp.” [Ouch!]

In loving memory of Chloe L.
In memory of Chloe L.

To date, many courts confronted with contested pet custody stick to the equitable distribution test, holding that pets are personal property which must be awarded to one party as part of a fair distribution of property. Parties may certainly attempt to enter into their own custody agreement, and if both parties abide by it, that is an amicable resolution. However, any agreement as to shared custody of a pet, if violated, will likely not then be enforced by the courts. Simply stated, just like a piece of furniture, pets are not subject to custody or visitation agreements.

As previously stated, since animals are considered property, the court’s role is to fairly (not equally) divide ownership of the pet as part of the distribution of property. If it gets to court, a judge can and will award ownership to only one party. However, there are still options available to negotiate and push for ownership of your pet, such as a property settlement agreement, but recognize this may require you to forfeit other assets during negotiations.

If you are facing a divorce and are dealing with concerns of pet ownership, the family law attorneys at Howland Hess O’Connell, Michael Cassidy, Dennis Meakim, and Karen Angelucci, are here to help.

Legal Disclaimer: The contents of this website are intended solely for informational purposes. They neither constitute nor imply an official legal opinion on behalf of Howland, Hess, Guinan, Torpey, Cassidy and O’Connell nor do they establish an attorney-client relationship of any kind. Howland Hess O’Connell encourages all readers to seek and consult professional counsel before acting upon the information contained on this site.

Postnuptial Agreements in Pennsylvania: A Better Alternative than the Pre-Nup?

r-POSTNUPTIAL-AGREEMENT-large570

We’ve all heard the story or seen the episode on TV: the guy comes to the girl (or vice-versa) the night before the wedding and asks her to sign a piece of paper [prenuptial agreement] for property protection in the event of divorce. [Side note: if this is your story, that agreement may not be legally enforceable.] An often forgotten but, arguably, more practical and beneficial option is what is known legally as a postnuptial agreement.

The two documents, a prenuptial agreement (“prenup”) vs. postnuptial (“postnup”) agreement, are essentially the same except that a prenup is drafted and signed before the marriage and a postnup is a contract entered into between married couples or those in a civil union. Both contracts are generally written to settle a couples affairs and assets in the event of a later divorce. Notably, a prenup has more legal requirements than a postnup agreement. However, because it comes with more legal requirements, some states view prenuptial agreements more favorably than postnuptial agreements.

Regardless, these contracts are recognized as valid in Pennsylvania so long as certain conditions are satisfied. When compared to other states, Pennsylvania is relatively undemanding when it comes to the requirements that must be satisfied to create a valid postnuptial agreement. The two major requirements in Pennsylvania are that there is a full disclosure of assets and no fraud. Therefore, even if the agreement if entirely one-sided to one of the two spouses, it can still be enforced. You should know that, unlike other states, Pennsylvania generally does not look to “fairness” itself as an element in determining the enforceability of the contract.

You might be thinking to yourself, “we’ve been married for X number of years, so it’s too late to enter into such a contract now.” Wrong! It’s never too late to protect your individual financial assets, and you should be aware of your rights to do so after you say “I do.” A common concern is that presenting your spouse with this option might lead to marital strife. This is an understood and appreciated concern, but a 2008 CNN Article titled “Quit fighting – get a postnuptial agreement” sheds some light on why these post-marriage contracts may be a factor in SAVING a marriage. In fact, the couple cited their postnuptial agreement as the reason why they made it to their 30th wedding anniversary.

If you are considering a prenuptial or postnuptial agreement, an experienced and effective family law attorney is essential. Both forms of contract are complicated, as they should be, and require a proper accounting and disclosure. After reading the above, if you believe this option is a potential tool for you, contact the family law attorneys Michael Cassidy, Dennis Meakim, and Karen Angelucci at Howland Hess O’Connell. If you reside in Pennsylvania or New Jersey, we are licensed in your state.

Legal Disclaimer: The contents of this website are intended solely for informational purposes. They neither constitute nor imply an official legal opinion on behalf of Howland, Hess, Guinan, Torpey, Cassidy and O’Connell nor do they establish an attorney-client relationship of any kind. Howland Hess O’Connell encourage all readers to seek and consult professional counsel before acting upon the information contained on this site.