Tuesday, August 24, 2010

Obtaining an Annulment in Pennsylvania – Difficult NOT Impossible.

There are many reason why some would prefer an annulment. When you examine the the legal basis or reasons the court will grant an annulment, it is little wander that an annulment is preferable to a divorce. An annulment invalidates or treats the marriage as if it never occurred.

Additionally, some annulments are based upon religious grounds, with Roman Catholics leading the way. My understanding is that it requires a someone who is a "Canon" lawyer and not an area I have ever delved into.

On the other hand, a legal annulment in Pennsylvania includes two distinct types: marriages that are "void" and ones that are "voidable." Both are based upon certain circumstances which are impediments to the formation of the marriage.

In order to obtain an annulment based upon circumstances that make the marriage void there can be no further cohabitation after the other learns of the the impediment. Reasons for a void marriage are:

One of the spouses was married to another person. This can occur when one party is deceptive, or if one party believes thy have been properly divorced and they have not.

The parties are blood relatives. The law speaks in terms of "degrees of consanguinity" which prohibit a person from marrying their parent or grandparent, brothers and sisters, aunts and uncles and first cousins.

Insanity and Mental Disorder. Pennsylvania law allows for annulment's when a mental condition renders one of the parties incapable of consent. Here the issue is whether the person had the mental capacity to enter into a marriage.

One of the Parties to a purported common law marriage was under 18. This one is still on the books but since common law marriage has been abolished, not a likely situation.

Voidable Marriages are ones that can become valid. If circumstances provide for this type of annulment, the marriage is voidable from its inception. Grounds or reasons for an annulment of a voidable marriage include:

When on of the spouses was under 16 years of age and the marriage was not expressly authorized by a court.

When either party was 16 or 17 and lacked parental consent or court approval and the marriage was not later ratified upon reaching age 18 and the action (the court case) was commenced within 60 days of the marriage.

Where one of the spouses was under the influence of alcohol or drugs and the action was commenced withing 60 days of the marriage. This is the classic waking up in Vegas after too much liquor to find out your married.

Where one party was induced to marry by fraud, duress, coercion or force and there has been no later voluntary cohabitation after knowledge of the fraud or release from the effects of the fraud, duress, coercion or force.

In all cases of "voidable" marriage, it is considered valid until an annulment is obtained from a competent court. Also, a voidable marriage cannot be attacked or questioned by anyone if the marriage has been confirmed by the parties. It also can't be questioned after one of the parties dies.

So, unless of these very narrow set of circumstances exits, a person is not likely to be able to obtain an annulment...they are difficult, but not impossible.

The alternative is a divorce, and with no-fault divorce being the law of Pennsylvania, there is still a way to dissolve a marriage, but that's the topic for another day.

Tuesday, January 19, 2010

Top Five Things to Do if You are Separating

When you are facing a marital separation, there are five things that you can do to protect yourself, financially and emotionally.

1. Think before acting. Imagine at all times that your kids and a family judge are watching every action and reading what you write. Anything you say or write in emails and text messages might be used as evidence. How would a family judge react to your Facebook profile? If you have a temper, consider moving out before you do something that might result in a restraining order. Don’t make any agreement without consulting a lawyer first.

2. Take concrete steps to safeguard your assets. Review your joint bank and credit card statements regularly to ensure that no unexpected withdrawals or charges have been made. You might want to divide joint accounts or close credit cards if there is no legal restriction, but check with your divorce lawyer first. It’s also a good idea to secure property that may have sentimental value, like family heirlooms, where they cannot be misplaced or damaged.

3. Gather financial records. If you keep your records organized, you will have an advantage in the divorce process and save legal fees. Make photocopies and keep them in a secure place so that you can furnish them to your divorce lawyer when asked. If you have access to your spouse’s records legally, make copies of them as well. You can obtain most documents through a legal process known as discovery, but it is cheaper to make copies yourself.

4. Contact reliable allies. Trust is one of the first casualties of divorce, so you need to find reliable allies. Consider supportive friends and family members who are able to keep your confidences and empathize with your feelings. Physical activities like exercise can reduce stress more effectively than alcohol or junk food. Hire a family lawyer that you feel comfortable with. It is very important to understand what your lawyer is saying and to be heard when you speak to your lawyer. Consider lawyers who concentrate their practice in divorce and know the nuances of this complex area of legal practice

5. Conserve resources. Creating a budget and sticking to it are always prudent measures, especially during a marital separation. When one household becomes two households, the expenses are increased but income is not. When making financial decisions, consider the effect on cash flow and liquidity. It might be better to pay joint debts out of joint income and assets instead of your separate income and assets, but check with your divorce lawyer first.

Credit where credit is credit is due: Brian C. Vertz, Esquire is the author of the original list, though I have changed a few things including the order. Brian is a well respected family law attorney from the other end of the state who has graciously allowed me to use his work.

Thursday, January 14, 2010

Access to the Courts

Access to the Courts.

There is a very insightful article in the latest edition of the Philadelphia Bar Association about the lack of access to the courts. Unlike most of the surrounding counties, in Philadelphia only the litigants and their attornies are permitted into the courtroom.

Part of this has to do with the antiquated building. The space is very limited and the building was once a department store ..... and for a time, I believe it was the site of Philadelphia Community College.

But what gets lost when the courts are not open is trust.