The Ins and Outs of Cohabitation & Divorce Law

PA & NJ MAT R IMONIAL T R IAL AT TORNE Y S
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The Ins and Outs of
Cohabitation and
Divorce
Thomas J. Petrelli, Jr., Esq.
Petrelli Law, P.C.
www.petrellilaw.com
Thomas J. Petrelli, Jr. presented the following presentation
about PA law for unmarried couples April 2013 to the
Philadelphia Legal Secretaries Association. Tom Petrelli’s
goal is to help families overcome the difficult legal matters
that arise with divorce, child custody, premarital agreements,
and domestic violence.
© 2013 | Petrelli Law, P.C. | 1845 Walnut Street, Suite 1600, Philadelphia, PA 19103 | (215) 523-6900

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What Unmarried Couples Need to Know
About Ending Relationships
Content
What Unmarried Couples Need to Know About Ending Relationships .............. 4
What Will Happen to Your Pennsylvania Pet If You Divorce? .............................. 11
Why Prenups are Important Planning Tools for Many Couples ........................... 13
Retirement Plans and Divorce .............................................................................. 16
Marriage and Your Partner’s Debt: How to Protect Yourself ............................... 20
Adoption of Step-Children and Subsequent Divorce ........................................... 21
The Gray Areas of Family Law
In this session, we will cover some of the less-common issues that
present themselves in family law practice, including:
What Unmarried Couples Need to Know About Ending Relationships
What Will Happen to Your Pennsylvania Pet if You Divorce
Why Prenups are Important Planning Tools for Many Couples
Retirement Plans and Divorce
Marriage and Your Partner’s Debt: How to Protect Yourself
Adoption of Step-Children and Subsequent Divorce
© 2013 | Petrelli Law, P.C.
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Breaking up is hard
to do, whether from a
marriage or a long-term
relationship. The legal
differences, however, can
be viewed as either a
blessing or a curse.
Ending a marriage, both
parties are protected by
the state’s legal rules.
When unmarried, issues
are less clear and the
responsibility of coming
to an agreement primarily
falls on individual
couples’ shoulders.

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If the couple co-owned property together,
they will need to decide who gets what.

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Couples need to be more creative, and have to look at areas of the law
such as contract law and property law. An example:
John and Janet break up.
They have lived together in John’s house for five years,
But only John’s name is on the deed;
However, Janet has been paying half the monthly mortgage payments.
If John does not agree to reimburse Janet for her share of the mortgage
payments, what are Janet’s options?
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Janet’s options:
Argue they had an implied contract that she would get something in return for
her payments beyond the right to live in the house
I.e. – her payments entitled her to an ownership interest in the equity in the
house and were not just rent payments
Seek a partition of the property to enforce her right to reimbursement for her
payments
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Regarding property, couples
cohabitating in a shared home
when breaking up will need to
consider:
House – transferring title via a new
deed and refinancing the mortgage
if both names are on it
Transferring deed
Taxes
Real estate transfer taxes
Gift tax if no consideration
Taxes apply because the couple is
not married (unmarried couples do
not get the same tax benefits as
married couples)
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If the couple chooses to sell the
co-owned home:
If own as tenants in common, get
share of proceeds proportionate to
ownership interest
If joint tenants with rights of
survivorship, assume split 50/50
but want an agreement in writing
Things to consider: Did the parties
previously enter into an agreement
as to who gets what share of
proceeds in event of break-up?
Credits to person who paid the
down payment?
How did they share the mortgage
payments?
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If the couple cannot reach an agreement
regarding the sale of the house, they can resort
to a partition proceeding.

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Additional items to consider
when splitting up as an
unmarried couple:
Jointly-held bank accounts
Shared apartment: A couple can
agree to break their lease, or
remove one party’s name from the
lease
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Splitting up possessions
Courts in Pennsylvania do not have
power to divide the property of
unmarried couples as they do for
married couples
Big ticket items that both people
paid for (i.e. electronics such
as televisions and computers,
furniture, artwork) must be agreed
upon between the couple
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Does the couple have children
together?
Informal custody arrangements
can work, but it is highly advisable
to get a written custody agreement
If there is no written agreement,
have to go through courts
Is one party moving out of the
area? Pennsylvania has a relatively
new relocation statute that
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requires notice of the move and
allows the other parent to object
– if there is a dispute, have to go
before a judge
– Judge considers many factors
– safety and crime rates of the
two areas, reasons for move,
financial benefits to child,
school systems, etc.

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About Ending Relationships 10
Life Insurance Beneficiary
Designations
– Retirement accounts, etc.
– make sure to change your
beneficiary designations
– Wills – if your ex was a
beneficiary in your will, and you
want to remove him/her, make
sure to do it promptly
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Does Common Law Marriage still
exist?
Became invalid after January 1,
2005
Common law marriages that were
contracted on or before January
1, 2005 were grandfathered in as
marriages. 23 Pa. C.S. § 1103
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Requisites for common law
marriage:
– Can only be created by an
exchange of words in the
present tense, to establish
husband-wife relationship
– Constant cohabitation
– A “reputation of marriage”
(i.e., other people think you’re
married)
Courts disfavored common law
marriages, difficult to establish
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What Will Happen to Your
Pennsylvania Pet If You Divorce? 11
What Will Happen to Your Pennsylvania Pet
If You Divorce?
Many people consider their pets
members of the family
However, pets are treated as
personal property by Pennsylvania
courts
– Resolve future pet ownership
in divorce proceedings
via a Property Settlement
Agreement
Cannot petition for “custody” of
your pet
Pets are not subject to custody or
“visitation” agreements
Best for parties to resolve the
issue of who will keep the pet
between themselves
© 2013 | Sacks, Weston, Petrelli, Diamond & Millstein LLC
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What Will Happen to Your
Pennsylvania Pet If You Divorce? 12
 A PA Court addressed a divorce
When negotiating an agreement,
consider:
– Who can better provide for the
pet’s needs? Who has more
time to care for the pet? More
room available?
– Are there children involved
who have bonded with the
pet? Reliance on the pet to
accommodate special needs?
– Who has primary custody of
those children?
settlement agreement that
provided for shared possession
of a family dog. DeSanctis v.
Pritchard, 803 A.2d 230 (Pa
2002)
Wife kept the dog, but husband
was allowed to visit
Husband petitioned the court to
enforce the agreement when wife
moved away
Court determined dog was
property. Explained that the
parties’ visitation agreement for
the dog was synonymous to a
visitation agreement for a table or
a lamp
Court did not enforce the
agreement pertaining to visitation
of the dog
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Why Prenups are Important
Planning Tools for Many Couples 13
Why Prenups are Important Planning
Tools for Many Couples
Prenups, often referred to under the law as premarital
agreements, make it possible for soon-to-be spouses to
agree as to how they will split their assets should they divorce
someday. Couples can thus contract around what a state
court would otherwise determine in terms of how they should
divide their property.

There are some common
situations when couples sign a
prenup, such as:
If one spouse is significantly
wealthier than the other
If both spouses have substantial
income and assets at the time of
marriage. This is especially true
today, when couples are waiting
longer to get married and are more
likely to have a high paying job,
own a house, or have received
an inheritance. A prenup is a
good way to organize a complex
assortment of property and to
keep assets earned prior to the
marriage separate.
If one spouse has helped the other
earn an advanced degree which
will contribute to significant earned
income (i.e. legal or medical)
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Another benefit to signing a
prenup is that it forces newlyweds
to disclose their full financial
situations and discuss them with
each other, disclosing possible
surprises during marriage.
A prenup is also a good idea if
one spouse enters the marriage
with large amounts of debt (from
student loans, major credit card
debt) or if one or both spouses
have children from a prior
marriage.
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 If you are planning a marriage, you
Couples can use prenups as an
estate planning tool, whereby they
agree to waive what is called an
“elective share.” When one spouse
dies, the elective share is the
portion of the deceased spouse’s
property to which the surviving
spouse is entitled. Sometimes
spouses agree to waive their
right to the elective share, for
example if one spouse already has
enough wealth or if the spouses
plan to provide for each other
through other means such as life
insurance.
should discuss the possibility of
a prenup with your fiancé and an
attorney. You should have these
conversations early, as courts
are suspicious of prenups signed
within a couple of months before
the marriage date.
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Retirement Plans and Divorce 16
Retirement Plans and Divorce
A big part of the divorce process is dividing up the property the spouses had
during the marriage - lawyers call this equitable distribution of marital property
Along with houses and bank accounts, retirement accounts are another class of
property that often gets divided during divorce
Reasons why retirement accounts get divided during divorce:
One spouse has significantly greater retirement savings than the other,
either because one spouse didn’t work or one spouse had a job that
provided them with better retirement benefits than the other
– giving some of these savings to the other spouse guarantees that spouse
some retirement proceeds to which he or she could have had access to
had the parties remained married
There are not enough liquid assets available to achieve a fair split of the
parties’ wealth
– For example, this may be if the only significant assets are a house and a
retirement account
In some cases a retirement account is the biggest asset of the marriage
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 A law firm prepares the QDRO,
Qualified Domestic Relations
Orders (QDROs)
– Normally if you take out funds
from your retirement account
prior to retirement, you are
taxed on the withdrawals and
owe penalties for premature
withdrawals
– You can avoid taxes and
penalties if you have the funds
distributed via a QDRO
• Both the states and
IRS have provisions for
QDROs – in section of IRC
explaining ERISA rules
both spouses sign it, and it is then
filed with the Court, Court issues
it as a court order, enforceable
through the courts
401(k)s and defined benefit plans
must be transferred via QDRO
IRAs do not have to be, but can
be done via QDRO – if not, you
must make sure to include specific
language referencing section
408(d)(6) of the Internal Revenue
Code
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It is important to including the
right language in your Property
Settlement Agreement.
Write out that funds will be
transferred via a QDRO
Include the cut-off date which will
be used for calculating the amount
subject to distribution
– Date of separation?
– Date of the property
settlement agreement?
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Beneficiary Designations
Can change them via a QDRO
If no QDRO, make sure to change
the beneficiary(ies)
– In a 2009 case (Kennedy v.
Plan Administrator for Dupont
Savings & Investment Plan),
the U.S. Supreme Court held
that a deceased man’s ex-wife,
and not his current wife,
was entitled to his retirement
proceeds because he did not
remove his first wife from the
beneficiary designation
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Ensuring the division of
retirement assets happens
according to plan:
Problems can arise if the
distribution of assets is not made
promptly
Often happens after the divorce
decree is issued – this is fine
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But, if wait too long, risk the
chance that account holder
removes retirement assets, for
example due to unemployment,
and not enough are left to
distribute according to the
agreement (this has happened to
a client recently)
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Marriage and Your Partner’s Debt:
How to Protect Yourself 20
Marriage and Your Partner’s Debt:
How to Protect Yourself
Community Property v. Common Law States
Pennsylvania is a Common Law State
Debts incurred prior to the
marriage is separate debt
Debts incurred during the marriage
– If debt incurred by one spouse
in their name only, it typically
belongs to that spouse alone
Who signed for the debt?
– Is your name on the account?
/ Did you co-sign for the loan?
– Caveat: Separate debt incurred
for joint benefit
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How to protect your credit
– Credit reports
Caution: A word about refinancing
one spouse’s pre-marital debt
Equitable distribution
– What happens to the assets?
The debt?
– What is marital? What is
separate?
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Adoption of Step-Children and
Subsequent Divorce 21
Subsequent Divorce
Pennsylvania’s Adoption Act
Effect of Adoption
– Termination of parental rights
• Voluntary / involuntary termination
– Severs legal relationship with the entire biological family
– Creates new legal relationships with adoptive family
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Open Adoption vs. Closed Adoption States
Post Adoption Contact Agreements
– Voluntary agreements for continuing contact/ communication
Now enforceable in PA (Act 101 of 2010)
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Subsequent Divorce 2
 If you adopt your step-child
Subsequent divorce has no effect
on the adoption of step-child
– Legally, the child remains the
child of the adoptive step-parent
– The relationship between child
and step-parent is permanent
after adoption and cannot
be reversed by a subsequent
divorce from the biological
parent
– You are assuming the legal
responsibilities
– You are assuming the financial
responsibilities
– Child will have the same
rights & responsibilities as a
biological child
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The Ins and Outs of Cohabitation & Divorce Law

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