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It’s official:  the federal court ruling legalizing same-sex-marriage in Pennsylvania will not be appealed by Pennsylvania’s governor.   Let’s take a look at the winners and losers.

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WINNERS

Loving, Same-Sex Couples

The obvious winners are same sex couples in PA whose union could not be fully recognized in their home state…until now.

Students of History and Government

This is an exciting time in PA.  Marriage is the oldest and most important institution in society.   The institution of marriage predates the Roman Empire.  The first recorded evidence of marriage contracts and ceremonies dates to 4,000 years ago, in Mesopotamia.

Suddenly, in PA, the definition of marriage has changed.  Just like that.

Also exciting is how the change relates to our special form of government in the USA.  Students of political science are taught about how some governments see freedom as self-evident and independent from the state.  In the United States, our government recognizes certain basic rights.  Such rights do not come the government, or even from God.  Rather, these basic and inalienable rights come from the power of reason, according to Saint Thomas Aquinas, a profoundly religious person whose philosophical work heavily influenced Western government.  Saint Thomas Aquinas saw God as the source of our ability to reason, but he took God out of the equation when evaluating natural law, or the origin of basic rights.  He  believed:

Law is a dictate of reason from the ruler for the community he rules. This dictate of reason is first and foremost within the reason or intellect of the ruler.

Consider at the alternative, or the absence of natural law.  For example, the Constitution of the Soviet Union was 100+ pages.  It read like a beautiful and flowing declaration of freedoms.  It was more broad in scope than the United States Constitution, which, in comparison, is only 15 pages long.  But in the Soviet Union, the extensive description of  “rights” had been granted.   Soviet Russia reserved the right to take those rights away.

But now, in Pennsylvania, the right to same sex marriage is recognized. Whether one agrees with same sex marriage or not, it is pretty amazing how we arrived at this point.

Divorce Lawyers

Divorce law is big business, which is always booming.  When the economy grows, people can suddenly “afford” to get divorced.  When the economy suffers, people fight over money and… get divorced.    It’s a win-win for divorce lawyers.  But don’t resent family law attorneys.  On a daily basis, family law attorneys apply their intelligence, training, and experience to bring sanity and organization to the lives of people going through the toughest of times.  Divorce attorneys regularly see peoples’ darkest emotions:  the stuff that moves people (in some instances) to hide substantial assets from a spouse who will starve otherwise or use an innocent child as a pawn for leverage in litigation.

Family law attorneys earn every penny they take home.

And now, with same sex marriage in PA, there will be more pennies.

With the right to marry comes the need for premarital agreements and post-marital agreements.  With the right to marry comes the right to divorce, and seek spousal support and /or alimony.  Such rights never existed before in the gay and lesbian community in PA.  Thus, it would behoove many people to turn to a lawyer for representation or at least a consultation regarding family law.

As an interesting side note, on the day when same sex marriage was legalized in PA, a divorce law attorney friend of mine was attending a CLE (continuing legal education course) on gay and lesbian co-habitation agreements.  Prior to same sex marriage in PA, the main way for couples living together to organize their rights together was via a cohabitation agreement and through trusts.   That day, during the CLE class, news streamed across the CLE attendees’ smart phones:  same sex marriage is legal in PA!.  With that, the CLE (regarding cohabitation agreements and trusts in lieu of marriage) became almost irrelevant.

The Legal System

When people think of “law,” they think of lawyers and clients.  But hey, what about he sweat equity invested by judges and judicial employees, such as law clerks, who work hard to resolve disputes…before they run home at 4:30, at least.

Just kidding, judges and law clerks! (mostly)

Seriously,  judges and law clerks are people, too.  They do work hard.  Try being a judge tasked with the chore of dividing the shared and combined assets of two people are not married.   That particular task involves a cumbersome and time consuming process called an Action in Partition, requiring a judge (without the assistance of a jury) to hear detailed evidence and draft something called a decree nisi. (A what?  Yes, exactly.)  There are few (if any) judges who specialize in partition actions as a sole focus of their docket.  Such actions are time consuming, uncommon, and the courts necessarily struggle with the process.

An action for divorce, on the other hand, triggers a division of the courts dedicated to family law.  There, the judges and rules are focused on divorce and the process of  orderly dividing marital assets relative to tried and true case law and legislative authority in PA dedicated to this area of law.   Added to that, there are lawyers who specialize in family law and who can advise clients about the likely outcomes based on said attorneys’ experience with the specific judge assigned to the case.  The legal process is not perfect, but it is reasonably predictable in terms of the amount of time and money it will take to bring a case to a resolution.  Take it from former judicial law clerk for a judge handling partition actions:  any reduction in the need for cumbersome actions in partition will breath a sign of relief in the judicial system.

LOSERS

Certain Politicians.  Gay marriage has taken American — and politicians — by storm.  Most if not all politicians (Democrat and Republicans alike) were against same sex marriage, until recently, including Hillary Clinton, Joe Biden, and the current President of the United States, Barack Obama.

The politicians struggle to define their stances.  Hillary Clinton’s explanation to Terry Gross on NPR left lots to be desired.  Perhaps the simplest explanation is, look, marriage comes from society, not the government.  The government only recognizes how society defines marriage.  Imagine if the government tired to ban all marriage, or if it tried to define it as a man and three men.   Society would not except either of those scenarios.  In the latter scenario, even if a state allowed a man to marry three men, chances are, once that made and his new spouses were to return home, their neighbor would not treat them as married, and that’s the point:  it’s society that defines marriage.

Society (not government) defines marriage.  Regardless of the type of government involved, government only recognizes society’s definition of marriage.  Imagine if Soviet Russia tried to outlaw all marriage.   The government would become irrelevant.  In the USA, the government runs the same risk, regarding gay marriage, albeit on a much smaller (but significant) scale.

In the USA, society has evolved pretty quickly on the same-sex marriage front.  Hence, the government scrambled and caught up, but that’s OK.  That’s how it’s supposed to be.

Going forward, politicians have certain decisions to make.  The same-sex marriage issue will work against all politicians who changed their stance on this, or who still want to outlaw it.   Plus, there are many other, really important issues out there right now: health care, the national debt (17 trillion), the economy, our standing in the world, terrorism, challenges from China and Russia, and more.  The religious right is entitled to its views, but why make the party’s other goals suffer?

At this point, the issue will only serve to anger same-sex voters and those friendly to same-sex voters, which will serve as a distraction from other GOP values:  smaller government, individual responsibility, market freedoms, etc. Politics is the allocation of values, but the public sentiment has already shifted. There are no values to “allocate” in the realm of same sex marriage.  There is nothing for the legislative process to decide, meaningfully.

Same Sex Couples Who Marry For the Wrong Reason.   Don’t marry to be a part of history.  Just because you can marry, doesn’t mean you should.  With every new right comes responsibility.

Keep it simple:  marry for the right reasons.  Call any time:

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PFA - couple in white roomNo one enters into a marriage expecting it to result in divorce.  That said, greater than twenty % of first marriages end in divorce within five years, and 48 percent of marriages end by the 20-year point.  This is according to 2006-2010 data from the government’s National Survey of Family Growth. Separation and divorce are emotionally difficult events, but it is possible to have a healthy breakup.

Cooperation, communication and mediation

You will like feel a flood of emotions from the end of a marriage.  These include anger, grief, anxiety and fear.  At times, these feelings will surface when you least expect it.  This is normal.  You will notice that the intensity of these feelings will subside. In the meantime, be kind to yourself.  Psychologists have discovered that people who are kind and compassionate to themselves have an easier time managing the day-to-day difficulties of divorce.

Try not to think of the divorce as a battle. Divorce mediation is often a good alternative to courtroom proceedings. Trying to resolve  things can be frustrating and self-defeating as the problems that contributed to your divorce are likely to re-emerge during divorce negotiations. Research shows that mediation can be beneficial for emotional satisfaction, spousal relationships and children’s needs.

Sitting down and speaking with your soon-to-be-ex-spouse may be the last thing you want to do, but cooperation and communication make divorce healthier for everyone involved.  Talking to a psychologist or other type of counselor can help you get your thoughts out in the open, and help you organize your thoughts.

When kids are involved

Divorce can be a traumatic experience for children, but research suggests that most children adjust well within two years following the divorce; on the other hand, children often experience more problems when parents remain in high-conflict marriages instead of splitting up. During a divorce, parents can do a lot to ease the child’s transition. Do your best to keep any conflict away from the kids. Ongoing parental conflict increases kids’ risk of psychological and social problems.

It’s often helpful for divorcing parents to come up with a strategy and present it to their children together. And, keep the lines of communication open. Kids benefit from having honest conversations about the changes their family is experiencing.

In many cases, sudden change can be hard on children. If appropriate, give them a few weeks’ notice before moving them to a new home, or before one spouse moves out.  You may benefit from minimizing changes as much as possible in the months and years following a divorce.

Children do better when they maintain close contact with both parents. Research suggests that kids who have a poor relationship with one or both parents may have a harder time dealing with family upheaval. Parent education programs that focus on improving the relationship between parents and their kids have been shown to help children cope better in the months and years following the divorce.

Taking care of your needs

The changes brought on by separation and divorce can be overwhelming. But now more than ever, it’s important to take care of yourself.  Lean on your support network, turning to family and friends for assistance and comfort. Formal support groups can also help you cope with the many emotions of a marriage ending.

To stay positive as you start a new chapter, try getting involved in activities you used to love but haven’t done in a while. Or try new hobbies and activities. Stay physically healthy by eating right and getting exercise.

How psychologists can help

Divorce is a challenging time for the entire family. Divorcing parents and their children can benefit from speaking to a counselor or psychologist to help them deal with their emotions and adjust to the changes. A psychologist can also help you think carefully about what went wrong in your marriage.  This can help you avoid repeating any negative patterns in your subsequent relationship.

The above appears in writings from the American Psychological Association.

For more, http://www.apa.org/topics/divorce/

Other advice:

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Nothing says “I love you” like a restraining order, or at least, that’s the title of a song by post-hardcore band Our Last Night. All kidding aside, a restraining order – a/k/a Protection From Abuse Act Order (“PFA”) – is serious business.

No level of abuse should be tolerated.  Any amount of abuse is too much.   For this reason, the Pennsylvania legislature created the concept of a PFA, which creates an immediate right to have a person tossed in jail, if he violates either the temporary or “permanent” PFA.

A PFA can save a person’s life.

Unfortunately, abuse can go both ways.  It is not uncommon for the PFA procedures in PA to be abused by those looking to go on the offense against a current (or former lover) or family member when no “abuse” or fear of abuse ever existed.  So long as a person is willing to testify that another person (related by blood, prior sexual relations, or affinity) was physically abused or made serious threats, the entry of a PFA order is a near certainty unless the party defending the action has some pretty reliable evidence to the contrary.  This is the case mostly because the courts err on the side of separating the parties and entering a PFA.

Meeting the threshold amount of evidence to obtain a PFA is easy for those willing to distort the truth.  The term “abuse” is defined pretty liberally in the PFA statute:

23 Pa.C.S. § 6102 (2012)

§ 6102. Definitions.

(a) General rule. –The following words and phrases when used in this chapter shall have the meanings given to them in this section unless the context clearly indicates otherwise:

“Abuse.” –The occurrence of one or more of the following acts between family or household members, sexual or intimate partners or persons who share biological parenthood:

(1) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury, serious bodily injury, rape, involuntary deviate sexual intercourse, sexual assault, statutory sexual assault, aggravated indecent assault, indecent assault or incest with or without a deadly weapon.

(2) Placing another in reasonable fear of imminent serious bodily injury.

(3) The infliction of false imprisonment pursuant to 18 Pa.C.S. § 2903 (relating to false imprisonment).

(4) Physically or sexually abusing minor children, including such terms as defined in Chapter 63 (relating to child protective services).

(5) Knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person, without proper authority, under circumstances which place the person in reasonable fear of bodily injury. The definition of this paragraph applies only to proceedings commenced under this title and is inapplicable to any criminal prosecutions commenced under Title 18 (relating to crimes and offenses). (Emphasis added).

As you can see, a PFA can be warranted where no physical harm results.  Rather, an “attempt” to cause “fear” is enough.  The definition is broad enough to include stalking or repeated interaction, which could mean having coffee at the same Starbucks as the Plaintiff, by chance or routine, every day, or driving past the plaintiff’s home if it’s on the defendant’s way to work every day, so long as that puts the plaintiff in “fear.”  (Do you see how this well-meaning statute can be abused?)

The blind entry of a PFA can cause enormous prejudice to the defendant, who may have been innocent of any wrongdoing.  A PFA can be used to wreak the following on an innocent person, who may face one or all of the following through an improper PFA:

    • Immediate eviction from his residence with the Plaintiff
    • Loss of freedom to travel down a street where the Plaintiff lives, even if it’s on the defendant’s way to work
    • Loss of the right to possess firearms even if the Defendant is and avid gun collector or merchant of weapons for a living
    • An order for child support even though no formal claim for support had been filed through the family courts
    • The court costs of the PFA (over $200),
    • The PFA can be served on the Defendant by sheriff or constable when the defendant is at work, ruining his reputation;
    • The PFA can be used for leverage in any custody, divorce, or support proceedings, and
    • The court may impose other relief that the court deems fair and just.
A PFA also creates a mark on a person’s permanent and public record.  Although a PFA does not create a criminal record per se (unless one violates the PFA and is found guilty of indirect criminal contempt), a PFA does appear on the civil docket as a finding of abuse, which the world can see, because the civil docket is public record.

Most employers only search one’s criminal records via the state police website, but some also check the civil dockets for blemishes.  We know for sure that those applying for section 8 housing will be subject to a search of PFA instances.

It is possible to have a temporary PFA expunged from the civil docket (which based on only one party’s side of the story, also called ex parte), but not a permanent PFA.  This is because, expungement applies to the removal of charges and accusations, not actual findings of fact related to a full hearing where all parties may attend.  Thus, if you are found to be an abuser following a hearing where you had a chance to testify, that record cannot be removed.  Thus, to be clear, if you go to court on the PFA and lose such that it becomes permanent, then the permanent PFA cannot be expunged.  An excellent analysis of this concept appears in a blog by Linda A. Kerns, who practices in Eastern PA. 

For these reason, if you have had a PFA served on you, you should immediately seek experienced counsel to defend the action or get the opposing party to accept some deal short of permanent PFA.   We get at least one call a month from some poor, unfortunate individual who decided to attend the hearing on the PFA alone (or with a family “friend” attorney who doesn’t handle these cases regularly) and came away from the process with a 3 year PFA against him.

Also keep in mind that, if you go to a hearing and lose, the PFA order is not the only public record, but rather, the testimony against you is also recorded and a transcript of the same can be ordered by anyone with a beef against you, so he or she can read about all the different forms of abuse according to at least one witness  under oath.

We strongly recommend that you seek experienced counsel in defending against any PFA action. Out East, consider Linda A. Kerns, Esquire, who wrote about whether a PFA can be expunged. In Harrisburg and Millersburg, consider Shaffer & Engle, which did a nice analysis of “bad faith PFA“s on their blog.  For all matters in Western PA including Pittsburgh (and all of Allegheny County and the surrounding Counties – Beaver, Butler, Washington, consider our Pittsburgh PFA lawyers.

Call or email our law firm any time for a free consultation.

412.780.0008

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PFA - couple in white room

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