Time to Retire… and Divorce?

The recently announced separation of Al and Tipper Gore reflects a broader trend of couples divorcing later in life – after thirty, forty or more years of marriage. Divorces among older couples, especially couples at or near retirement age can present difficult challenges in resolving equitable distribution and support and alimony claims in divorce. The Bucks County divorce lawyers at Cooley & Handy, however, are experienced in finding effective and creative solutions in divorces involving older couples.

The rise in the divorce rate among couples in long-term marriages can be attributed to several interconnected factors.

First, and most obviously, couples are living much longer. Where “till death do us part” may have only meant twenty or thirty years in the not-so-distant past, with people now living into their eighties and nineties, it can potentially mean forty, fifty or even sixty years or more today. In lengthy marriages individuals change and couples can grow apart or simply become bored with one another. Many individuals are also looking for self-actualization in their later years. After children are grown and living on their own, spouses now often find themselves with years remaining in their lives. With no joint responsibilities, such a children, binding them together, many individuals are no longer willing to remain with a spouse with whom they no longer share common interests.

An interesting study of 500 couples sponsored a British dating site, as reported by the Wall Street Journal, found that people married for one year spend 40 minutes of an hour-long dinner engaged in conversation. After twenty years of marriage that time is down to 21 minutes. After thirty years it is down to 16 minutes. Couples married 50 years or more talk for just three minutes!

Economics and societal acceptance of divorce have also played a role in the rise of older couples divorcing later in life.

Women, who have become financially empowered through increased working rates and asset ownership, are no longer are economically compelled to remain in an unhappy marriage. Many men, on the other hand, now succumb to the “Viagra effect.” Now able to continue their sex lives into their later years, men will often leave wives who have lost interest in sex. Not surprisingly, Men rarely voluntarily leave a marriage unless there is someone else in the wings, or at least the possibility of a new romance.

Older couples divorcing later in life often face issues that do not affect younger couples.

The availability of income for spousal support and alimony is one such issue. If one or both spouses are retired or near retirement, support or alimony may be minimal, particularly if marital retirement accounts and pensions are treated as assets rather than income (from the payment streams) to the owner-spouse. When there is alimony, if one spouse has not worked for much of his or her life, alimony may be permanent.

A second issue involves the beneficiary designation on pensions and other retirement accounts. It is critical to insure that the non-owner spouse remains designated as the beneficiary of such accounts until equitable distribution, because if the owner-spouse dies while the divorce is pending and the other spouse is not named as beneficiary, the spouse may lose his or her claim to those assets, which are often significant. These are just two of the many issues that can affect older divorcing couples.

The Bucks County divorce attorneys at Cooley & Handy have decades of experience handling divorces involving older individuals. Our attorneys are especially sensitive to these issues and the emotional impact of divorce after years of marriage. If you are divorcing later in life, you should schedule a consultation to learn your rights and have an attorney determine whether immediate action is necessary to protect your financial security.


The Great Recession’s Affect on Pennsylvania Divorces

The recent recession in the United States has directly affected the economic and personal lives of Americans. A secondary affect of the recession has been on the divorce rate.

A recent article from the Wall Street Journal notes that divorce rates have decreased as the economic crisis has increased.

The reason that the divorce rate has decreased is that poorer employment opportunities and a decrease in the value of martial assets have forced couples to remain together, notwithstanding marital difficulties. As a result, many couples that want to separate and divorce are either putting their cases on hold or are looking for more creative and cost efficient means by which to separate and divorce.

A primary reason that the divorce rate has decreased during this recession is because of the particularly grim employment market.

Unemployment rates have stubbornly remained around 10%, and the percentage of people working with reduced hours or pay is far in excess of that number. Complicating matters is that divorces are often instigated by financial problems. In many divorces one or both of the spouses involved have either lost a job, have their job in jeopardy, or had their hours or pay reduced. Consequently, many estranged spouses are in a financial bind, when it comes to their divorce, giving a whole new meaning to the promise “for richer or poorer.” Many couples simply do not have enough money necessary to support themselves separately and pay for their other financial obligations and, therefore, are choosing to remain together out of economic necessity.

In the past, divorcing couples often used equity that they built up in their marital residence to fund their divorce and provide each of them with a nest egg to begin their separate lives. House prices have dropped significantly, however, wiping out much or all of the equity. Worse yet, in many situations, couples are “upside down” on their mortgages and need to attempt a short sale to separate financially.

The Bucks County divorce attorneys at Cooley & Handy have seen these effects of the recession on the divorce rate first hand.

In certain cases, moving divorces forward has become more difficult because couples do not have the financial wherewithal to support themselves separately and the marital assets worth significantly less than they were just a few years ago. Many clients or their spouses have also experienced employment problems. Beginning in the spring of 2009, Cooley & Handy and other Bucks County divorce lawyers noticed a drop in the amount of new divorce cases (and an upswing in the amount of domestic abuse cases).

That trend, however, has recently reversed itself and Cooley & Handy has experienced a sharp increase in new divorce cases over the past six months. Some of the increase may be attributable to the improved economy. Some of the increase, however, is likely attributable to couples who previously delayed their divorces but are no longer willing to do so – there is a limit to the amount of time that a person case remain living with an estranged spouse.

Couples that have been affected by the recession need to figure out new ways of dealing with separation and divorce when finances are lacking.

In some situations, where animosity is low, couples have been able to split up the house while cohabitating it and implement shared custody schedules while the divorce is pending. Couples can also avoid incurring large legal and other bills by attempting to be more cooperative with each other in resolving disputes. When legal action is necessary, it is best to be as flexible as possible. In some divorces, couples will attempt to resolve their economic issues together, and then one spouse will consult with and retain the Bucks County divorce attorneys at Cooley & Handy to draft a property settlement agreement based on the previously agreed terms and process the divorce. Although it is always prudent to consult with a divorce attorney prior to negotiating with your spouse, so you fully understand what your legal rights are and the likely outcome of a court-ordered equitable distribution.

In short, the Bucks County divorce lawyers at Cooley & Handy have found that many of the divorces they handle in Bucks County, Montgomery County and Philadelphia County are requiring more creative solutions. They acknowledge the financial pressure from the broken economy and want to help potential clients in any way possible.


Dismissal of Abuse of Process Lawsuit Arising out of Pennsylvania Custody Litigation Affirmed

Cooley & Handy won an appeal today that followed the dismissal of a frivolous “abuse of process” lawsuit filed against one of Cooley & Handy’s clients, a mother, by her ex-husband and the father of her children. The lawsuit arouse out of contentious and on-going divorce and custody litigation pending in Bucks County. Cooley & Handy also represented the mother in the custody litigation.

In the underlying custody litigation, Cooley & Handy was able to secure the mother a series of custody victories, that included court orders and agreements, in which mother was awarded additional time with her children. At every stage of the custody litigation, father vigorously opposed mother’s attempts to secure additional custody time with her children.

Frustrated by mother’s and Cooley & Handy’s success in the custody litigation, father resorted to filing a frivolous abuse of process lawsuit against Mother in Bucks County.

Father claimed that mother had abused the custody litigation process by forcing him to make what he viewed as “unwarranted custody concessions.”

On December 31, 2008 Cooley & Handy successfully convinced the Bucks County Court of Common Pleas to dismiss father’s lawsuit with prejudice. Accepting Cooley & Handy’s arguments, the court found that father could not state a claim for abuse of process based on the custody petitions that mother had filed, particularly where mother was successful on her petitions and had obtained additional time with her children.

Father appealed the Bucks County court’s decision to the Superior Court of Pennsylvania. On April 7, 2010, the Superior Court of Pennsylvania, after briefing and oral argument by Cooley & Handy, affirmed the trial court’s decision in full.

As a result of Cooley & Handy’s efforts and success, parents can continue to feel secure in their right to seek custody of their children without the threat of collateral litigation aimed at exhausting their emotional and financial wherewithal.


Cooley & Handy Obtains Substantial Settlement in Lock Haven University Assault Case

Cooley & Handy recently obtained a substantial cash settlement in a personal injury case for a 21 year-old Lock Haven University student who was severely injured after he was assaulted while at college. The plaintiff was injured when he attempted to intervene to break up a fight started by six young men who did not attend the university. As he approached the fight, the plaintiff was pushed by one of the young men, tripped, fell back and struck his head on a concrete sidewalk.

As a result of falling and striking the sidewalk, the plaintiff suffered a serious traumatic head and brain injury, including a skull fracture running from the back center of his head through his cheek and nose. Following the accident, the plaintiff was put into a medically induced coma for several weeks and surgeons had to remove a section of the plaintiff’s skull to relieve pressure on his brain. Miraculously, the plaintiff survived his injures, but had to undergo several follow-up surgeries and intense rehabilitation, including learning to walk, talk and eat again.

Cooley & Handy overcame several challenging legal obstacles to reach a settlement in the case.

First, the defendants in the case were all young men without substantial assets or the ability to otherwise satisfy a judgment. By pursing the case under a strict negligence theory however, and intentionally rejecting allegations of assault and battery, Cooley & Handy was able to obtain insurance coverage from several of the defendants’ parents’ homeowner insurance policies, which cover negligent acts but do not cover “intentional” acts, such as assaults. This theory also fit well with the facts of the case since most, if not all, of the defendants likely did not actually intend to injury the plaintiff, particularly to the extent of his injuries.

Second, because no witness could definitively identify the individual defendant that actually pushed the plaintiff, and all of the defendants denied doing so, Cooley & Handy had to proceed against all of the defendants under a theory of concerted tortious conduct or “enterprise liability,” which had the added benefit of making more than one of the defendant’s insurance policies available to satisfy a judgment. Pennsylvania law allows liability to be imposed on individuals who engage in concerted tortious conduct, such as the behavior that occurred in the case (i.e. starting and participating in a fight). See, e.g., Sovereign Bank v. Valentino, 914 A.2d 415 (Pa. Super. 2007),

The settlement was reached after extensive discovery and litigation in the case. The specific terms of the settlement are confidential. The lawsuit was filed in Montgomery County, Pennsylvania.

Cooley & Handy is a Bucks County personal injury law firm that represents plaintiffs in personal injury lawsuits in both state and federal court in Bucks County, Montgomery County, Philadelphia County, and throughout Pennsylvania and elsewhere.


Alimony Pendente Lite Can Help You Afford a Divorce in Pennsylvania

Whether you are unemployed, under employed or are simply the lower-earning spouse in a marriage, the cost of getting divorced in Pennsylvania is an important concern faced by those who are seeking a divorce. This is where alimony pendente lite can help.

Our attorneys often encounter clients who sacrificed their careers for the sake of the union, either by opting to work part-time or to stay at home to care for children. Such a decision, however, often made years earlier, can place a spouse at a serious financial disadvantage. Once divorce papers are filed, the “bread-winner” of the marriage often begins to use his or her financially-superior position to dictate how the parties should divide their assets, share custody of their children, and so forth. The lower-earning spouse sometimes feels that she or he has no other option but to accept these dictates. This fear is unfounded. Pennsylvania divorce law provides several practical options for spouses who find themselves in this circumstance.

In Pennsylvania, lower-earning spouses have the right to seek financial support from the higher-earning spouse, both during separation and through the pendency of the divorce.  This type of support is called either Spousal Support or Alimony Pendente Lite (“APL”). 

The purpose of APL is to ensure that both parties have the financial ability to retain legal counsel and proceed in a divorce action.  In other words, even if you have very few financial resources on your own, you may be able to receive support so that you can hire your own attorney—someone who will represent your best interests and help you to afford a divorce.

The amount of APL that your spouse may owe you is based on a percentage of the difference in after-tax income between the higher-earning spouse and the lower-earning spouse, along with other factors. The Pennsylvania Support Guidelines dictate the amount for which a payor spouse will be obligated.  APL may be awarded even if both spouses remain living in the same home during your separation.  In fact, even if you have committed some other legal misconduct related to the marriage (like adultery), you can still seek and receive APL if you are the lower-earning spouse.

Cooley & Handy strongly believes that it is essential that you attempt to establish your financial independence during the pendency of your divorce. 

Of course, once the marriage has legally ended (i.e. equitable distribution matters are finalized and a divorce decree has been entered), you may be granted further support. Support awarded to you after the marriage has ended is called “alimony.”  Contrary to popular myth, there are not necessarily any hard-and-fast rules as to how alimony is awarded.  Rather, the court will determine whether you can meet your reasonable needs (according to the marital lifestyle), and will take into consideration your income and the amount of marital assets that you received in equitable distribution.

Alimony is often awarded in cases where there is a large disparity in the parties’ incomes, where one party has physical or mental deficiencies, where the marriage was long-term, and under other circumstances. Alimony generally terminates when the person receiving the alimony begins living with another party with whom they are romantically involved, or when the payee remarries, or passes away.

Consequently, although it may seem like there is no way that you can financially afford a divorce and support yourself thereafter, there are several legal mechanisms that can assist you in getting through this difficult process.

Contact the Divorce attorneys at Cooley & Handy to discuss your options. Cooley & Handy are Bucks County Divorce Lawyers, Montgomery County Divorce Lawyers and Philadelphia County Divorce Lawyers.


Fault & No Fault Divorce in PA: What You Need To Know

In the past to obtain a divorce in Pennsylvania one spouse had to prove “fault” by the other spouse. That, however, is no longer the case in Pennsylvania. Now a Pennsylvania divorce may be obtained without a party having to prove that the other party is somehow legally at “fault.” The Pennsylvania fault divorce, however, still survives as a legal option and in certain circumstances, where grounds for a fault divorce exist and where the opposing party refuses to consent to a no-fault divorce, it may be economically advantageous or psychologically beneficial for the party seeking the divorce to pursue a fault divorce.

In Pennsylvania there are two types of divorces: fault and no-fault.

Obviously, a fault divorce requires some type of legal “fault” by the opposing party, such as adultery, bigamy, indignities (a catch-all category for general mistreatment), or abandonment. The grounds for a fault divorce are defined by statue. Further, the party seeking a fault divorce cannot themselves be at fault or have condoned or subsequently ratified the fault behavior, such as where a party resumes martial relations with a spouse known to have committed adultery.

In contrast to a fault divorce, in a Pennsylvania no-fault divorce proof of legal fault is not required. Rather, the only requirement is that one or both parties want to get divorced. The vast majority of Bucks County, Montgomery County and Philadelphia County divorces proceed as no-fault divorces. This is true even if fault is present because the parties generally do not want to testify in open court to establish fault grounds and because no-fault divorces are simpler and generally less contentious. However, the length of time it takes to obtain a no-fault divorce is dependent on whether both parties agree to proceed with the divorce.

There are two types of no-fault divorces available in Pennsylvania.

No-fault divorces in which both parties consent to the divorce and no-fault divorces where only one party consents to the divorce.

In the former case, the divorce can proceed as soon as 90 days after the divorce complaint is served. In the latter case, however, where one spouse does not want the divorce or will not agree to a no-fault divorce (due to economic or other reasons), the divorce cannot proceed until one year has elapsed from the date of separation, which is presumed under law to be the date the divorce is filed, although the presumption is rebuttable based on evidence of another date of separation presented at a hearing. Thus, a disagreeable spouse or his or her divorce lawyer can potentially delay a divorce for a year or more, all while the delaying spouse continues to receive economic benefits from the marriage, such as spousal support and residence in the martial home.

A party might desire to expedite the divorce for any number of reasons. For example, the party may no longer wish to support their estranged spouse economically, or the party may want to sell the marital residence or just simply finally separate themselves from their estranged spouse.

In these cases, a party can allege grounds for a fault divorce in a divorce complaint filed in Bucks County, Montgomery County or Philadelphia County. Then request a hearing to establish and prove the legal grounds for a fault divorce. In Bucks County Divorces, the process for establishing fault grounds consists of a record Divorce Masters’ hearing. Then, potentially a court trial if one party disagrees with the Bucks County Divorce Masters’ recommendation. The process is very similar in both Montgomery County divorces and Philadelphia County divorces. Practically speaking, however, with a fault hearing pending, parties are more likely to agree to consent to a divorce to avoid having the details of inappropriate conduct aired in court.

Indeed, in the cumulative 35+ years the Bucks County Divorce lawyers at Cooley & Handy have been practicing family law, we have collectively only had to litigate one fault divorce through a hearing. In all other cases, the opposing party signed their affidavit of consent to a no-fault divorce prior to the fault grounds hearing. Thus, the mere threat of moving to proceed on fault grounds is usually all the leverage that is needed to obtain a speedier no-fault divorce.

Economic and emotional factors, as well as custody issues, can come into play in deciding whether it is advantageous to attempt to proceed on fault ground. Persons considering this option, therefore, should discuss the matter with a Bucks County divorce lawyer, a Montgomery County divorce lawyer or a Philadelphia County divorce lawyer, such as the attorneys at Cooley & Handy.


“But I need my car for work…” — DUI License Suspensions in Bucks, Montgomery and Philadelphia Counties and the Availability of Occupational Limited Licenses

First time DUI offenders often wonder if their driver’s license will be suspended and, if so, how they will manage to get to work.

Because people are so dependent on their vehicles, this is a major concern for those faced with DUI charges. In fact, many of our clients are actually more concerned about their potential driver’s license suspensions than going to jail. If you find yourself facing DUI charges, you should probably start to consider alternative transportation arrangements.Pennsylvania DUI law has a three-tiered punishment system based on the offender’s Blood Alcohol Content (BAC) at the time of the offense. Punishment is also dependent upon the number of DUI offenses previously committed.

If you are a first time offender convicted of a DUI offense with a BAC of less than .10%, there is no mandatory license suspension.

If, however, you are a first time offender with a BAC of .10% or above you will have your driver’s license suspended. The length of  license suspensions depends on both your BAC and whether you are approved for an “Accelerated Rehabilitation Disposition” Program.

Bucks, Montgomery and Philadelphia Counties all offer first-time offenders potential admission to Accelerated Rehabilitation Disposition (ARD) programs. Eligibility for the Bucks, Montgomery and Philadelphia County programs vary slightly and an attorney at our firm can help you to understand their individual terms and conditions. An offender may wonder how participation in an ARD program will affect a mandatory driver’s license suspension, if at all.

The ARD program is a pre-trial intervention program that is designed to divert first-time, non-violent offenders from the criminal justice system. By statute, however, the ARD program must adhere to certain dictates. For example, a person in the program must serve 6-24 months of nonreporting probation and will have to successfully complete the Alcohol Highway Safety School and undergo a Court Reporting Network (CRN) drug and alcohol evaluation. A significant benefit of participating in the ARD program is that once the program is successfully completed, the underlying criminal charges are legally dismissed.

Another benefit of ARD programs is that the length of the mandatory license suspension is significantly reduced.

As stated earlier, if your BAC is less than .10%, there is no license suspension. If you enter the ARD program as a first-time offender with a BAC of between .10% and .159%, there is a 30-day mandatory driver’s license suspension. Those offenders with a BAC of above .159% are subject to a 60-day suspension. For those not eligible or approved for an ARD program, the length of the driver’s license suspension for BACs equal to or greater than .10% is 12 months.

The driver’s license suspension generally commences upon court approval of your entry into the ARD program and the surrender of your driver’s license. Clients who face a mandatory license suspension often ask whether they can get permission to drive for work, despite the mandatory suspension. If you are approved for the ARD program and are subject to a 30 or 60 day suspension, the answer is no. Pennsylvania does grant occupational limited licenses under certain circumstances. You must apply for this restricted license by application to the court. However, occupational limited licenses may only be granted 60 days after your original suspension.

Therefore, occupational limited licenses are not a solution for those in the ARD program.

This is because a driver’s license suspensions are between 30 and 60 days for those eligible for ARD programs with BACs .10 or greater, and the minimum suspension for an occupational driver’s license is 60 days. Consequently, if your BAC was above .10%, one of the first things you should begin to think about upon your DUI arrest is “how will I get to work?”


Bucks County Courier Times Editorial Supports Cooley & Handy’s Appeal of Custody Contempt Order Imposing Sanctions on Father for Profanity Use

Thumbs Down

To the Bucks County judge who fined a divorced dad $2,000 for cursing in front of his 9-year-old son.  That’s not to condone the practice.  It is both shameful and reprehensible for any adult to use foul language in front of any child.  But there is such a thing as free speech.  And, like it or not, the Supreme Court has ruled that “courts and legislatures cannot limit speech to appease the most squemish among us.”

The judge’s ruling has been appealed to state court, which we expect will rule that the judge’s order and fine amounts to, as the dad’s attorney argues, “unenforceable prior restraint on free speech.”

We don’t condone the dad’s behavior or even excuse it.  But, in our view, the judge went too far.

Cooley & Handy Blog Editor’s Note: The appeal technically involves the judges’ first order, which prohibited father from using profanities or other “inappropriate language” in front of the child.  Father is claiming that order cannot be enforced because it is an overly broad prior restraint on free speech that clearly encompasses constitutionally-protected speech.   The appeal was also taken to the Superior Court of Pennsylvania and the case involves father’s daughter, not his son.

(This editorial appeared in the May 1, 2009 edition of the Bucks County Courier Times.)


Cooley & Handy Challenges Sanctions in Custody Contempt Case Based on First and Fourteenth Amendments to U.S. Constitution

Cooley & Handy Challenges Bucks County Order Sanctioning Father $2,000.00 for Cursing in Front of His Ex-Wife and Daughter on First Amendment Grounds

Father Claims that Bucks County Judge’s Order which Prohibits Him From Using “Inappropriate” Language and Sanctions Imposed Constitute an Illegal and Unenforceable Prior Restraint on Free Speech.

A father in a custody dispute is challenging a contempt order entered by a Bucks County judge that sanctioned him $2,000.00 for violating a custody order requiring him not to use profanity or inappropriate language around his daughter and the child’s mother. The specific language of the custody order, entered by the Hon. Wallace H. Bateman, Jr., requires the father to “refrain from using any profanity when dealing with mother and mother’s husband, and using any type of language around the children that’s inappropriate.” Judge Bateman held father in contempt and sanctioned him $2,000.00 in attorney fees for violating the order after he admittedly used profanities during a custody exchange. Father has appealed the finding of contempt and the sanctions to the Superior Court of Pennsylvania based on the First and Fourteenth Amendments to the United States Constitution.

“This is a classic example of an illegal and unenforceable prior restraint on free speech” according to the father’s attorney, Kevin J. Handy, a partner at the Doylestown law firm of Cooley & Handy.

The Supreme Court of the United States defines prior restraints on free speech as “administrative and judicial orders forbidding certain communications when issued in advance of the time that such communication are to occur.” Prior restraints carry a heavy presumption of unconstitutionality and are permissible in only exceptional cases such as war, obscenity and incitements to acts of violence and the overthrow of force by the government. Orders issued in the area of First Amendment rights must be framed in the narrowest of terms so as not to prohibit or infringe on any constitutionally protected speech.

That is part of the problem with the order according to Mr. Handy. “Not only does the order prohibit clearly constitutionally protected speech, it is unconstitutionally vague and subject to arbitrary and discriminatory enforcement. Who gets to determine what speech is ‘inappropriate’ and under what standards? The Supreme Court noted in Cohen v. California that courts and legislatures cannot limit speech to appease the most squeamish among us.”

Judges in custody cases often enter orders that purport to restrict what one or both parents may say to each other or around their children. These provisions, however, are rarely enforced through contempt or sanctions or challenged on appeal. The Court of Appeals of Washington, however, in a similar case, recently held that an order in a custody dispute prohibiting a father from contacting immigration or other governmental official concerning his ex-wife’s immigration status constituted an illegal prior restraint. The case is In re the Marriage of Meredith.

“Parents to custody disputes have no less constitutional rights than parents in intact families or other individuals” claims Mr. Handy. “A judge may no more restrict a parent’s use of language that he subjectively finds objectionable than the government can for any other group or individual.”

Mr. Handy notes that Father is not arguing in his appeal that judges cannot take into consideration profanity use or other constitutionally protected speech in formulating their custody decisions. “That issue is for another day,” states Mr. Handy. “Father is only claiming that judges in custody cases cannot prohibit or sanction constitutionally protected speech.”


Cooley & Handy Attorney Establishes that Biological Father may Challenge Putative Father’s Acknowledgment of Paternity on the Basis of Fraud

October 24, 2008 – In a precedential ruling, the Superior Court of Pennsylvania held that a biological father has the statutory right to challenge an acknowledgment of paternity on the basis of fraud, duress or material mistake of fact.

Cooley & Handy attorney Susanne M. Wherry, with co-counsel, successfully argued that silence, when good faith requires disclosure, can rise to the level of a fraudulent misrepresentation.

In R.W.E. v. A.B.K. and M.K., — A.2d –, 2008 WL 4684341, Mother and Putative Father were involved in an on-again/off-again relationship between February 2002 and November 2003. During one of the parties’ brief separations, Mother became sexually involved with another man (hereinafter referred to as “Father”). Soon thereafter, Mother and Putative Father reconciled and she ceased relations with the Father. Meanwhile, Father was deployed to Kuwait by the National Guard. Mother discovered she was pregnant in March 2004. Mother told Putative Father that there was a “50-50 chance” another man fathered her unborn child. They agreed that they would never tell Father about the pregnancy.

Putative Father and Mother generally resided together for the duration of her pregnancy and he was present at the child’s birth on November 12, 2004. Putative Father signed an acknowledgment of paternity a few days after the child’s birth, and was named as the father on the child’s birth certificate. Within a year, the couple separated again. Custody actions were filed on behalf of both parties (Mother and Putative Father).

It was not until January 2006 that Mother informed Father of his possible parentage. He immediately asserted his parental rights and became active, both emotionally and financially, in the child’s life. Father was soon joined as a defendant in the custody litigation. Ultimately, genetic testing confirmed that he was the biological father of child. Soon thereafter, Father filed a Petition to Vacate the Acknowledgment of Paternity. The trial court found that Mother and Putative Father’s “agreement” was intended to defraud Father of his paternal rights, constituting fraud and, therefore, it vacated the acknowledgment of paternity.

In an en banc opinion, the Superior Court emphasized that, when an allegation of fraud is injected in an acknowledgment of paternity case, the tone and tenor of the matter changes. The Court explained that silence may be characterized as a fraudulent misrepresentation when good faith requires an expression. The Court found that Mother and Putative Father’s agreement to choose Putative Father as the father of Mother’s unborn child, to forgo genetic testing to conclusively establish paternity, and to refrain from informing Father of his possible parentage, was intended to defraud biological Father of his paternity rights warranting a successful thirdparty challenge under the Acknowledgment of Paternity Statute. Consequently, the Superior Court affirmed the trial court’s ruling, holding that it properly vacated Putative Father’s acknowledgment of paternity and adjudicated Father the biological father of the child.