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Family Law Divorce Case Law Updates - April, 2012

Divorce Case law updates - April 2012 By Cynthia Bashore, Esquire, Attorney with Law Offices of Maribeth Blessing, www.mbfamilylaw.com

In SMC v. WPC, 2012 PA Super 92, Husband appealed the Trial Court's rulings that (1) Wife's post-separation affair is irrelevant to a spousal support entitlement; (2) Wife's vacation cruise with friends, over the objection of Husband, does not constitute "indignities" against Husband; and (3) Wife's decision to leave the marital residence as a result of Husband's verbal abuse did not constitute desertion. In determining spousal support entitlement, the Court must look at a party's conduct during the marriage to determine whether a fault grounds exists for divorce. Since a party cannot establish fault grounds based upon post-separation conduct, Wife's post-separation relationship was irrelevant to her entitlement to spousal support. The Court also found that leaving the marital residence as a result of Husband's verbal abuse, over Husband's objection does not constitute desertion. Wife did not leave maliciously or on a casual whim; rather, Husband was emotionally abusive. The Court also found a significant disparity in the incomes of the parties and ordered Husband to pay a portion of Wife's attorney's fees. Not a good day for Husband...

In MacDougall v. MacDougall 2012 Pa. Super 83, the Court decided the issue of whether post-separation cost of living adjustments to Husband's pension benefits are considered marital property subject to the terms of an equitable distribution order, where Wife was awarded a share of the marital portion of Husband's defined benefit pension plan. The Trial Court ruled that the marital component of Husband's pension did not include post separation cost of living increases. The Superior Court reversed, citing the general rule that post separation increases in pension benefits are marital as long as they are not the result of efforts attributable to the spouse. Therefore, the post-separation cost of living increases are considered marital property because the increases were not merit based nor due to post divorce efforts of Husband. Rather, they are considered "passive adjustments." The court concluded that post-separation cost of living increases in the benefit are marital and subject to equitable and proportionate distribution.

Notably, the Court also discussed the factors that must be proven for civil contempt: To sustain a finding of civil contempt, the complainant must prove, by a preponderance of the evidence, that: (1) the contemnor had notice of the specific order or decree which he is alleged to have disobeyed; (2) the act constituting the contemnor's violation was volitional; and (3) the contemnor acted with wrongful intent. The Superior Court reversed and remanded to determine whether Husband acted in contempt under these factors when he refused to provide Wife with her proportionate share of the cost of living increases.

In Reber v. Reiss, 2012 PA Super 86, Husband appealed a trial court's ruling that awarded Wife the parties' frozen pre-embryos created from Husband's sperm and Wife's eggs as part of an equitable distribution award in the parties' divorce. Affirming the Trial Court's ruling, the PA Superior Court concluded that although the party desiring to avoid procreation should ordinarily prevail, the Court balanced the facts unique to this case and found that Wife's inability to "achieve biological parenthood without the use of the pre-embryos" is a significant interest that outweighs Husband's desire to avoid procreation.

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