Berman & Asbel, LLP

February 2012 Archives

Adopting Your Lover - a Clever Estate Planning Strategy that Could Land You in Jail (in some states)

In early 2010, Florida multi-millionaire John Goodman allegedly ran a stop sign and collided with a vehicle driven by Scott Wilson.  Wilson's car went into nearby water and Wilson drowned.  Police found Goodman to have more than the legal limit of alcohol in his system and Goodman faces numerous criminal charges.  Wilson's family filed a lawsuit against Goodman.  If the Wilson family prevails, they would seek to collect against Goodman's considerable assets.  However, there is one asset that the Wilsons cannot touch - the trust fund that Goodman established for his children years ago because legally Goodman has no control over that trust.  Thus it is possible that Goodman could be financially wiped out by a judgment against him.As described in a very interesting article by Syracuse University Law School Professor Terry Turnipseed, here entered some clever estate planning.  Goodman, 48 adopted his 42 year-old girlfriend, Heather Hutchins.  When Goodman adopted Hutchins, she legally became his child and thus entitled to one-third of the funds in the trust.  Because of her age, Hutchins has immediate access to her share of a considerable amount of money and thus Hutchins could enable Goodman to continue to have an affluent lifestyle.  So that's a pretty clever way to at least partially evade some huge financial problems.However, as Professor Turnipseed points out, there are other serious potential ramifications such as incest - 25 U.S. states and territories include sexual intercourse between parents and adult-age adopted children in the definition of the crime of incest.  However, as Professor Turnipseed also points out, this will not be a problem for Goodman and Hutchins in Florida since that state does not include their relationship in the definition of incest.In Pennsylvania, however, a parent-child relationship, even if between parent and adopted adult child, does fit in the definition of incest - a second degree felony:

18 Pa.C.S.A. § 4302

§ 4302. Incest

(a) General rule.--Except as provided under subsection (b), a person is guilty of incest, a felony of the second degree, if that person knowingly marries or cohabits or has sexual intercourse with an ancestor or descendant, a brother or sister of the whole or half blood or an uncle, aunt, nephew or niece of the whole blood.

(b) Incest of a minor.--A person is guilty of incest of a minor, a felony of the second degree, if that person knowingly marries, cohabits with or has sexual intercourse with a complainant who is an ancestor or descendant, a brother or sister of the whole or half blood or an uncle, aunt, nephew or niece of the whole blood and:

(1) is under the age of 13 years; or

(2) is 13 to 18 years of age and the person is four or more years older than the complainant.

(c) Relationships.--The relationships referred to in this section include blood relationships without regard to legitimacy, and relationship of parent and child by adoption.

While there may not be concerted campaigns to arrest and prosecute adults related by adoption who are sleeping together, the possibility is there in those states which such conduct is within the definition of incest.  Those considering such adoptions should thus be cautious.

There is, of course, another reason to be cautious about using adoption as such a planning tool.  What if the relationship breaks up.  A romantic relationship can be ended and married couples can divorce but the parent-child relationship created by an adoption is not so easily put aside.Readers should not solely rely on this note as legal advice but should consult with a competent attorney licensed in their state. You can also find more information in our firm's websites on Family Law and Wills and Estate Planning and Administration.

Another Fed. Judge Finds DOMA Unconstitutional

The Defense of Marriage Act (DOMA) took another hit from a federal judge on Wednesday.  A federal judge in San Francisco has ruled that DOMA violates the Equal Protection clause of the Constitution.  Click here to read a New York Times article about the case. In this latest case, a female staff lawyer working at the U.S. Court of Appeals for the 9th Circuit (the same court which just ruled California Proposition 8 unconstitutional), had married her longtime female partner during the brief period when same-sex marriages were permitted in California before Proposition 8 was approved.  This couple is thus legally married under California law.  The plaintiff in the case sought to add her wife for coverage under the health insurance plan she has through her job.  Her request was denied based upon DOMA defining, for federal government purposes, that a marriage is only between a man and a woman.  In this ruling, the federal district judge ruled that DOMA as applied in this case violates the equal protection clause in the U.S. Constitution.

This is not the first time that DOMA has been ruled unconstitutional.  In 2010, two rulings in a federal court in Massachusetts held DOMA unconstitutional.  In one case, the court held that DOMA violated the Equal Protection clause and also lacked any rational relationship to the government programs which were being affected by the law.  In the other case, the court ruled that DOMA intruded upon the state sovereign power of the Commonwealth of Massachusetts - marriage being a matter traditionally regulated by states, not the federal government.  Those cases are on appeal to the U.S. Court of Appeals for the First Circuit in Boston.

Also note that the Obama Administration in 2011 announced it would no longer defend DOMA in court.

Prop 8 Gay Marriage Ban Ruled Unconstitutional but Same-Sex Weddings Unlikely in CA Right Away - Appeal Likely; No Immediate Impact in PA

In a much anticipated ruling, a three judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled that California's Proposition 8 which banned same-sex marriage in that state violates the United States Constitution's Fourteenth Amendment.  The decision in the case of Perry v. Brown,* affirms the decision of the trial judge finding that the adoption of a state constitutional amendment banning same-sex marriage violated the federal constitution.   The appeal court's ruling is actually a narrow decision.  It does not go so far as to state that same-sex marriage should be legalized nationwide.  Rather, the court analyzed the history of how same-sex marriage had become legal in California in the first place - a process that culminated in a California Supreme Court decision which held that under California's constitution, same-sex couples had the same right to marry as heterosexual couples.  For a time, same-sex couples could legally marry.  Then in 2008, a voter initiative, Proposition 8, was passed in an election by a narrow majority.  Proposition 8 amended California's constitution to explicitly ban same-sex marriage by defining marriage as only being a union of a man and woman.  Several couples affected by the law filed a lawsuit in a federal court.  The plaintiffs won in the trial court and the backers of Proposition 8 appealed.  

The federal appeals court noted that California law guaranteed numerous other rights, many with financial implications, to same-sex couples, and found that the sole purpose of Proposition 8 was to deny to same-sex couples the right to acquire the status of being married.  The federal appeals court found that to take away a fundamental  right such as marriage  from a specific, politically disfavored group, when that group previously had that right under the California constitution violated the 14th amendment of the United States Constitution. To quote the opinion, Proposition 8 "served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationship and families as inferior to those of opposite-sex couples."

This decision will not impact Pennsylvania residents right away.  This decision is about the validity of a state law in another state and will not change the fact that same-sex marriage is not recognized in Pennsylvania.  This case also has no impact on the federal Defense of Marriage Act (DOMA) which bars federal recognition of same-sex marriages entered in states that do recognize them.  That issue is pending in other court cases.  However, if this decision stands or is upheld on further appeal, it could be an important precedent to block a state from banning same-sex marriage after that state's courts have found such a right to exist under that state's constitution or after a state legislature has previously enacted that right.  Thus, for example, if the Pennsylvania courts were to rule in the future that same-sex couples have the right marry under Pennsylvania's constitution, the Perry decision could mean that the state constitution could not be amended to take that right away.
Edwin Chemerinsky, dean of the UC Irvine Law School, takes the view the language used by the 9th Circuit Court could mean that any law in any state banning same-sex marriage is unconstitutional.  Chemerinsky predicts that if the case goes to the U.S. Supreme Court, the Court will affirm the lower court ruling that Proposition 8 is unconstitutional.  Click here to read Dean Chemerinsky's article.

Meanwhile, same-sex couples residing in Pennsylvania, even if they are married under the law of another state, must have carefully prepared documents to plan their estates, arrange for healthcare decision-making rights for their spouses and partners and make arrangements regarding child custody if they wish to secure as many rights for their spouses, partners and families as possible. 

As for the future of the Perry case and whether same-sex couples can marry in California, that remains to be determined.  It is very likely that the people who initiated Proposition 8 will appeal the 9th Circuit Court decision.  They could seek to appeal to have the case reheard by a larger panel of judges (en banc) in the 9th Circuit Court or they could attempt to appeal the case to the U.S. Supreme Court. If an appeal is filed, it is likely that a stay will delay the effect of the current ruling until further appeals are resolved.

To read about our services for same-sex couples, click here.

*The case was originally titled Perry v. Schwarzenegger but the name was changed when Jerry Brown succeeded Arnold Schwarzenegger as Governor of California in 2011.  Both Schwarzenegger and Brown refused to defend Proposition 8 in court so the defense of the law was left to the people and organizations who originally put Proposition 8 on the ballot.

Relocating a PA child? Divorced/separated parents need consent or court order

When parents of children are divorced or separated, custody can be a difficult issue. When the parent who has primary custody wants to move with the child a significant distance, that can create even larger issues.  Under Pennsylvania's new child custody law, a child can only be relocated with consent of the other parent or any other person who has custodial rights to the child; or court approval. The need for consent or court approval also arises when the distantly located non-custodial parent seeks to have primary physical custody of the children in his/her distant location.

Section 5322 of Pennsylvania's Domestic Relations code defines a relocation as "a change in a residence of the child which significantly impairs the ability of a non-relocating party to exercise custodial rights."  Section 5337 states the procedure for relocation.

The parent who wants to relocate the child must give at least 60 days written notice (unless there is good reason why 60 days notice is not possible). The non-relocating parent has 30 days to object, or cannot contest the petition to relocate. The notice must include the physical and mailing address of the new residence, who will be living in the new residence, the reasons for the relocation, a proposed revised custody schedule, and any other relevant information.

The notice must also include a form in which the non-relocating parent can indicate whether he or she consents or objects to the relocation. 

If the non-relocating party consents or does not respond with an objection within 30 days, then the relocating parent must file a petition to confirm the relocation.  The court is supposed to act on such a petition in an expedited manner so that relocations to which there are no objections can move forward.

If there is an objection to the relocation or to the proposed schedule, then the court must hold a hearing on the matter.  Such hearings should be expedited to the extent possible.  In deciding on whether to allow the relocation, the court must consider these factors:

(1) The nature, quality, extent of involvement and duration of the child's relationship with the party proposing to relocate and with the non-relocating party, siblings and other significant persons in the child's life.

(2) The age, developmental stage, needs of the child and the likely impact the relocation will have on the child's physical, educational and emotional development, taking into consideration any special needs of the child. 

(3) The feasibility of preserving the relationship between the non-relocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties.

(4) The child's preference, taking into consideration the age and maturity of the child.

(5) Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other party.

(6) Whether the relocation will enhance the general quality of life for the party seeking the relocation, including, but not limited to, financial or emotional benefit or educational opportunity.

(7) Whether the relocation will enhance the general quality of life for the child, including, but not limited to, financial or emotional benefit or educational opportunity.

(8) The reasons and motivation of each party for seeking or opposing the relocation. 

(9) The present and past abuse committed by a party or member of the party's household and whether there is a continued risk of harm to the child or an abused party.

(10) Any other factor affecting the best interest of the child.

Parents seeking to relocate a child who fail to follow the rules can suffer severe consequences.  Failure to provide the proper notice can be grounds for the court to deny the relocation, order that custody be given to the non-relocating parent and ordering payment of attorney fees.

In short, a divorced or separated parent who wants to relocate a child must plan ahead and follow the statutory procedure or risk severe consequences.  Click this link to read the full text of section 5337 of the Domestic Relations Code.

Readers should not solely rely on this note as legal advice but should consult with a competent attorney licensed in their state. You can also find more information in our firm's websites on Family Law and Wills and Estate Planning and Administration.
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