United States: Advice To Psychologists: Take Two Aspirin And Call The Lawyer In The Morning

Part 1 of 2

After a recent meeting, my colleague Julie Manser and I were discussing what it must be like to be a mental health practitioner in an age of frequent divorce. Clients commonly ask us questions that are better posed to people with degrees in psychology and psychiatry and we often hear from our clients about what their psychologist thinks needs to happen in the context of a divorce proceeding. We would welcome similar insights from our colleagues in the mental health community but, for the moment, we will confine our thoughts to what mental health professionals need to know about divorce in Pennsylvania. As with all legal advice, nothing substitutes for the custom fit of advice tailored to the actual facts, but absent all of the facts, here are some general things that all people should know even if they don't have mental health training.

1. "Am I legally separated?"

This is actually a complicated question with many answers. Before 2005, the definition was the cessation of all cohabitation but even then people living in the same house could be legally separated if they let the world know that the marriage had attained "Game over" status. The courts looked for outward manifestations of separation such as separate bank accounts and the absence of the couple from family events like weddings, Thanksgiving, or religious celebrations.

The courts also looked to signals that the separation was not merely practical (separate jobs in separate towns) but hostile. These standards still exist and are not easily defined.  But in 2005 the General Assembly came to the rescue with a law that said a presumption of separation was created by filing for divorce. So the shorthand of this is that Pennsylvania does not have a bright line test of legal separation but a presumption that it is in effect if one party has filed in Court to end the marriage.

2. "If I leave the house will I lose my rights to the house or my kids?"

No, but don't be stupid either. We routinely hear stories of people who live in very real jeopardy of physical harm from an abusive spouse because they know that if they left, they would lose all rights to the marital residence and even their children. It would be abandonment, right? Well, no. Departure from a house to evade the risk of violence or even to collect your own thoughts is not going to be viewed as abandonment. In fact many police departments responding to domestic violence calls will tell one of the parties that it might be wise to spend the night elsewhere.  Nothing wrong with that. But, the longer you stay away voluntarily, the greater the risk that you will create a new status quo where a court will find that it is in everyone's best interest to keep you and your spouse apart.

So if you leave for a night or two to stay with a friend or relative and weeks go by without your returning, you do have a risk that a court will award the spouse who remained exclusive possession. That may actually be advantageous to you but any competent lawyer will want to know all the facts before advising you to stay or leave.

So, a night away is not going to cause irreparable harm but as one night grows to two or seven or fourteen, realize that you might be creating a case for one party to get exclusive possession. Understand that exclusive possession is not a forfeiture of your rights to whatever equity your home may have. That money will be counted so long at the house was acquired while you were married.

3. "The divorce papers say I may lose rights if I don't file something immediately."

They do say that, but divorce cases have very few "default" provisions for failure to file. That is different than regular civil cases like contracts or personal injury claims. If you are served with a divorce complaint in person or by registered mail, you really should put legal advice on the agenda. While the system is kind of "rigged" to prevent default divorces, many divorce actions are filed with corresponding actions for support, custody or "special relief" including requests to freeze assets or for exclusive possession of a house.

When your patient looks through the package of materials, they should be looking for anything that gives them a specified date and place to answer a request for relief. Thus if a person is sued for custody of a child, the paperwork will typically state a date and time for a conference or hearing. The same is true for support. You may see paperwork that references claims for support or custody but no hearing times are anywhere to be found. This means that the suing spouse is making the claim but has not asked for a hearing on it. This often occurs when couples are still in the same house. Courts are chary to immerse themselves in deciding support or custody if both adults still live together.

The key here is to carefully review the materials and check to see if anything is "scheduled". If something is, pay attention to it and don't wait until the last day or hour to find out about your legal rights. Otherwise you may find yourself ordered out of the house with your assets frozen.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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