By: Carla Marino and Kelly Jurs

While we are all taking extra precautions and faithfully adhering to “stay at home” and “shelter-in-place” orders, it is important to understand that attorneys and parties still have the ability to address divorce-related matters.

While most courts’ daily functions are at a standstill, parties can still move their equitable distribution (“ED”) process forward by completing necessary tasks and required discovery.

Whether or not discovery is going to be litigated, completing as much as possible during this time will position you for the global resolution of your matter, or, at least, prepare you to address issues when court operations resume.

The ED process provides a “financial photo” of the marital estate by identifying and valuing the assets and debts of the parties.  It also addresses any increases in pre-marital assets during the course of the marriage (which will then be considered a marital asset) as well as any post-separation contributions to marital asset accounts (which should be removed from the marital estate).

Once assets and debts are identified and valued, the parties (or a court or court-appointed master) will determine how those assets and debts should be divided and shared. In Pennsylvania, the marital estate is divided equitably, but not necessarily equally.

Courts use 11 factors outlined in a statute (23 PA C.S.A Section 3502(a) to determine how equitable division/sharing of the marital estate should be conducted. Each factor is considered separately and can be weighed differently based on the circumstances.

Determinations regarding the value of the marital estate depends on certain dates, some of which may change.  The date of marriage provides the beginning snapshot of the marital estate.  It also details what assets and debts each party had before the marriage.

Premarital assets may have been used to obtain marital assets.  Premarital debts may have been paid with marital funds and/or income.  These details are all taken into account when determining the final sharing of the marital estate.

The date of separation may not be so clear.  The date of separation for purposes of determining when the marital relationship ended may be different from the date of financial separation.

The separation of the parties related to their marital relationship is based on many factors but in no case can be later than the date on which a divorce complaint is filed.  The financial separation date may be the same date, or an agreed-upon date for reasons specific to the parties.

The parties are always encouraged to work to reach an agreement without the need for court intervention, to allow them, and not the courts, to control the final outcome.  If the parties cannot reach a resolution, they can formally request that the matter be assigned to an ED conciliator/master.

Once an ED conciliator/master is assigned, the court will issue a schedule.   The initial pre-trial process uses mediation methods geared to resolving ED issues without the need for a trial.

Even with the court filing (which may have taken place in your matter and may be pending while court hearings are suspended), the parties can continue to complete required discovery and work toward amicable resolution.

The ED discovery process requires that parties and their attorneys compile documents in their possession or request documents electronically, where available. Jointly requesting documents cannot only save the parties time, it can also save them money, as often there are costs associated with access.

Standard initial documentation for discovery includes income information such as W-2’s, 1099s, pay stubs, and employment letters/contracts, as well as statements for all accounts (banking, investment, retirement, pensions, college funds, inheritances, etc.).

The parties should also compile ongoing and updated values for vehicles, cash value life insurance policies, and pensions. They also should have real estate appraised or values researched in order for the real estate to be listed for sale.

If spousal support is being requested, the spouses will need to list income and expenses separately from determinations relating to ED.

The parties should promptly exchange initial documentation to ensure that everyone has the same information and can determine if additional documentation is needed.  It is important to safely share these documents because they represent all of the financial information of both parties.

Documents can be shared by mail, fax, and web-based programs.  Anything shared over the web should be encrypted to protect the information.  There are many options available so be sure to confirm that whatever option is used, the documents can be downloaded by all persons involved.

The discovery process can proceed remotely to allow the parties, and their counsel, to follow the mandated social distancing rules and orders issued by Governor Wolf.  Formal discovery requests, Motions to Compel Discovery, and the Motion for the Appointment of a Master can all be completed through the U.S. Mail, and in some counties, electronically.

Hearings will be scheduled later in the calendar than usual but the parties’ rights are preserved with the filings.  And, for filings that are already in place, the parties still have the ability to progress and/or finalize their discovery.

Once discovery is complete (and throughout discovery), the value of the marital estate can be determined, the non-marital aspects that affect it can be reviewed, and the 11 statutory factors can be considered by the parties and their counsel.

The parties can use the period during which court hearings have been postponed to provide and negotiate formal global offers of settlement to resolve ED.  Even if ED is not resolved during this time, the parties have not lost anything; they have reserved their right to proceed in court while making progress toward completing discovery or narrowing the list of issues to be submitted to conciliator/master for formal consideration.

Even though COVID-19 is presenting parties and practitioners with novel and challenging issues, the delay should not turn into a “full stop” of your ED matter.  The parties should use the luxury of this time to do what they can to resolve and streamline the ED process.

For further information and questions regarding divorce, equitable distribution and other family law matters, contact Lamb McErlane PC. 610-430-8000. www.lambmcerlane.com.

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Carla Marino is a partner at Lamb McErlane PC. She concentrates her practice in Family Law and specializes in all aspects, including, but not limited to, pre-nuptial planning and agreements, post-nuptial agreements, divorce, equitable distribution, child custody, alimony, support, property settlement, all related litigation and mediation of issues. cmarino@lambmcerlane.com. 610-430-8000.

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Kelly Jurs is an associate in the Family Law practice at Lamb McErlane PC. She focuses her practice on compassionate and efficient advocacy specializing in all aspects of pre-nuptial planning, divorce, equitable distribution, child custody, property settlement, and related litigation and mediation of issues. kjurs@lambmcerlane.com. 610.701.3277.

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