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Pittsburgh Divorce Law Blog

FMLA and DOMA: What Same Sex Married Couples Need to Know

Another victory for same sex married couples, but first a little history.  In 2013, the Supreme Court, in U.S. v. Windsor, 570 U.S. 12 (2013) struck down section three of the Defense of Marriage Act as unconstitutional as it limited marriage and spouse to the legal union between one man and one woman as husband and wife, or rather, only opposite-sex couples. This decision had a major impact on the Family Medical Leave Act (FMLA), which allows eligible employees to take unpaid, job protected leave for certain specified family and medical reasons.

Prior to Windsor, the FMLA regulations defined the term spouse as "a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized" and consequently, same-sex couples were not entitled to leave under the FMLA even if they lived in a state that recognized same-sex marriages. However, with the Windsor decision came a slightly different reading of the same definition with the result being that same-sex couples could enjoy FMLA leave to care for a same-sex spouse but only if they resided in a state that recognized same-sex marriage. This new interpretation, although offering as much coverage as possible, still had broad implications. For example, if a same-sex couple was married in the state Pennsylvania, which now recognizes and allows same-sex marriage, but then moved to Georgia, a state where same-sex marriages are still banned, that couple would not have been entitled to the protections afforded by the FMLA. This limitation really impacted not only coverage under the FMLA, but also a couple's mobility.

Pennsylvania Death Penalty Moratorium

"If the Commonwealth of Pennsylvania is going to take the irrevocable step of executing a human being, its capital sentencing system must be infallible. Pennsylvania's system is riddled with flaws, making it error prone, expensive, and anything but infallible... If we are to continue to administer the death penalty, we must take further steps to ensure that defendants have appropriate counsel at every stage of their prosecution, that the sentence is applied fairly and proportionally, and that we eliminate the risk of executing an innocent. Anything less fails to live up to the requirements of our Constitution, and the goal of equal justice for all towards which we must continually strive." - Governor Tom Wolf, February 13, 2015

The death penalty has been in the news a great deal lately - both locally and nationwide. Our latest post on death sentences involved the infamous Jodi Arias and her near miss with a sentence of lethal injection. Over the past month, a number of issues have arisen in Pennsylvania regarding the death penalty. On February 13, 2015, less than a month after taking office, Pennsylvania Governor Tom Wolf granted a reprieve for Terrance Williams, a man convicted of First Degree Murder and sentenced to death in 1984. Wolf's predecessor, Tom Corbett, signed Williams' death warrant, meaning that lethal injection was imminent until Governor Wolf intervened. In a statement, the Governor stated it was not because of his sympathy for the convicted that he issued the moratorium, but because the Pennsylvania capital punishment system "has significant and widely recognized defects." Citing "an unending cycle of death warrants and appeals", the financial drain on taxpayers, the emotional stress on victims' families, racial and socioeconomic bias of the system and the irreversible nature of the punishment itself, Governor Wolf declared that no executions will be carried out in Pennsylvania until he has received and reviewed a report by the Pennsylvania Task Force and Advisory Committee on Capital Punishment and addressed its recommendations.

As with all public debates on the death penalty, there has been some outrage over the moratorium, with many questioning the Governor's power to even impose such a restriction. On March 5, 2015, two men robbed a Philadelphia video game store, murdering Police Officer Robert Wilson. Certainly, murdering an officer in the course of a robbery meets the "aggravating circumstances" required to impose a death sentence [Link to Jodi Arias blog for information on aggravating circumstances]. Will Governor Wolf's moratorium spare Officer Wilson's murders from lethal injection?

Jodi Arias Dodged the Needle

On March 5, 2015, a jury could not unanimously agree on whether Jodi Arias deserved the death penalty. In May 2013, after a lengthy trial, which included testimony of psychological experts and an unbelievable eighteen days of Defendant testimony, Arias was convicted of the June 2008 murder of her ex-boyfriend, Travis Alexander. The sentencing phase of the trial concluded on March 5 when a second jury, for a second time, could not agree as to whether Arias should suffer the death penalty for her actions. She has dodged the needles of lethal injection, but Arias will still spend a very long time in prison. On April 13, an Arizona judge will determine whether she is going to spend the rest of her life in prison or, if someday she could be eligible for parole.

After proving to the jury beyond a reasonable doubt that Arias committed murder, in order to have a death sentence imposed, Prosecutors next had to prove to the jury that Arias' actions were particularly "cruel, heinous or depraved." The Prosecutions' only witness was the Medical Examiner who described the nature and extent of Travis Alexander's wounds - 27 to 29 stab wounds, a slit throat and a gunshot wound to the head. After his injuries were inflicted, it took Travis two whole minutes to die, a duration which was impressively and dramatically demonstrated by the Prosecution when they paused, holding the courtroom silent, allowing the full time to tick by. There were victim impact statements made by Travis' family, in which they talked about the life that Arias brutally took over half a decade ago and the pain that they still live with to this day. Arias made her own tearful plea and, despite earlier interviews in which she said that she would prefer the death penalty, asked that the jury spare her life. In the end, her pleas must have worked. One juror saved Jodi Arias from being strapped to a gurney and given the cocktail of drugs that would end her life as punishment for her actions.

We, as outsiders, all have our opinions on Jodi Arias. There have been news specials, public interviews by the Defendant (which were, of course, introduced as evidence at trial) and even a Lifetime Movie made about this story. The law, however, must remain blind. In Pennsylvania, as in Arizona, numerous rules govern the application of a death sentence, rules which must be followed strictly in order for a sentence of death to be imposed.


How will Bruce Jenner's name change go? Jenner brought a sense of (semi) normalcy and calm to his large, mixed brood of sons, daughters and step-children on E!'s "Keeping up with the Kardashians". Bruce, a former Olympian, married Kris Kardashian in April 1991. After more than twenty years together, Bruce and Kris Jenner separated in October 2013. Kris filed for divorce in September 2014 citing "irreconcilable differences."

Since the separation and, especially over the last few months, Bruce has started to look a little different. He's had his nails manicured and painted pink. He has been growing his hair longer and has been seen wearing a ponytail while out and about. Then, in January 2015, sources close to the Kardashian/Jenner family revealed that Bruce is transgender and soon will be making his transition from identifying as a male to living life as a female. As is usually the case in Hollywood, TV deals have been inked, a documentary series scheduled and a Diane Sawyer interview filmed, all of which focus on Bruce's journey.

So much of a transgender man or woman's transformation focuses on the medical and social aspects of the transformation - How will he dress? What bathroom is he going to use? Will he take hormones? Will he get sex reassignment surgery? - But seemingly countless legal issues also affect men and women who have chosen to publically assume their true gender identity.

A deceptively complex issue faced by all individuals in the transgender community is their name - what is their name? For example, when Bruce begins to live publically as a woman, he will be identified by a female name (rumor has it that he has chosen "Belinda" or "Bridget"). What should he do? For social networking cites like Facebook and Instagram, the change is simple. You just log in to your settings and change your name. But what about a more official, legal change? How does this person want to be identified on paperwork at the office or on their bank accounts?

Estate Planning: How to be Prepared for an Unexpected Death

Why is estate planning so important? We can all probably agree that talking about or even thinking about death is something most would like to avoid at any cost. Death is never an easy subject. However, being prepared by having an estate plan can help make one of the most difficult times in your life a little less painful.

Actor, Ben Woolf died on Monday afternoon at the age of 34 after being involving in a tragic car related accident. Woolf is known for playing the character, Meep, on the television series American Horror Story: Freak Show. The accident occurred late Thursday night when Woolf was struck in the head by a passing car's side-view mirror. One can only imagine how unexpected and shocking the news must have been to his family. A man of many talents, he was far too young to have his life taken away. Unfortunately, a harsh reality is that accidents such as this occur all too frequently. Families are left grieving, trying to put the pieces of their lives back together while managing the legal affairs of their loved one who has since passed.

So the question remains, what can be done to help simplify the process for those grieving the death of a loved one? Every individual, whether single or married, should have in place three documents that will be extremely effective tools used for managing their affairs when they are no longer with us. These documents include: a will, a power of attorney, and a healthcare directive or living will.

A will is prepared in order to allow the testator to directly express how his or her estate is to be handled. The will sets forth what will happen to personal as well as real property, and any other remaining property at the time of your death. Without a will, your possessions may not end up in the hands of the people you would have otherwise chosen.

Special Needs & Mental Health Resource Fair

Please join McMorrow Law at Representative Dan Miller's 2nd Annual Children and Youth Disability and Mental Health Summit on Wednesday March 11th and Thursday March 12th at the Beth El Congregation, 1900 Cochran Road, Pittsburgh, PA 15220. Events are scheduled to begin at 10:00 a.m. on both days. McMorrow Law will be attending the event this year as an Exhibitor and will be providing information on special needs guardianships as well as special needs trusts.

Special Needs Guardianships:

Once an individual turns 18, they become a legally competent adult in the eyes of the law. Unfortunately, this does not account for those who are either physically or mentally disabled, and as a consequence are unable to make decisions for themselves. In situations such as this, having a guardian appointed will ensure that the incapacitated individual's interests are safeguarded. McMorrow Law and its experienced attorneys are available to provide representation to individuals and/or families who may need to seek a guardian on behalf a child with special needs or an incapacitated adult.

Ludacris Wins Full Custody of his Daughter

In January, Ludacris was awarded full custody of his 13-month-old daughter, Cai. The award was the result of a long and contentious court battle, during which Cai's mother, Tamika Fuller, even went so far as trying to use the rapper's song lyrics against him. However, in the end, Ludacris, whose real name is Chris Bridges, prevailed.

"Full custody," the form of custody awarded to Ludacris, is not a term recognized in Pennsylvania. The equivalent terms in Pennsylvania are "sole legal custody" and "sole physical custody." Sole legal custody is the right of one individual to legal custody of the child which means the right to make major decisions on behalf of the child. Sole physical custody is the right of one individual to exclusive physical custodial time with the child. When one parent has sole physical, it is possible that the other parent may have some sort of limited visitation or supervised physical custody. It is unclear if Tamika Fuller will have supervised physical custody of Cai.

In a statement to People magazine, Ludacris said, "I am gratified that the judge found me to be the most fit and proper parent to have primary physical custody of our beautiful daughter." However, if Ludacris had litigated his case in a Pennsylvania court, the outcome would not have been based on which party is the better parent per se; in Pennsylvania, the courts consider what is in the best interests of the child when making a custodial determination.

March: The "Divorce Month"

It is hard to believe that winter is finally nearing its end and the cold temperatures could soon be a thing of the past. But unfortunately, with the end of the cold winter months comes a surge of something most would consider equally as depressing - divorces. A prior analysis conducted by coined March the "Divorce Month." The article clarified that although January is still the month where divorce numbers really start to increase, March is actually the month where the number of divorces peak. Why is the start of a new year such a trendy time for married couples to seek a divorce? According to, one possible reason could be that couples prefer to stay together for the sake of the family during the holiday season. Or perhaps the reasoning is as simple as avoiding the tax consequences associated with changing your marital status prior to the end of the year.

It's Poop Not Pot in Wiz Khalifa's Latest Custody Battle

A local Pittsburgh native, Wiz Khalifa, seems to have his hands full with what can best be described as the onset of a "messy" custody dispute with ex-wife, Amber Rose. Recent news reports detail photos of a backyard patio covered in animal feces where Amber Rose lives with their almost two year old son, Sebastian. The reports indicate Khalifa is concerned that the family's dog is eating the feces and then licking Sebastian's face. This horrific thought, coupled with additional photos showing a knife left on the kitchen counter-top and overflowing garbage cans, has caused Khalifa to consider pursuing legal action to obtain more custody of his son. According to the most up to date news articles, Khalifa is generating a lengthy list of issues related to Amber Rose's care of their son that could lend support in a future custody dispute.

If Khalifa was still a Pennsylvania resident, a possible first step at getting more time with his child would be to file for a modification of his and Amber Rose's existing custody agreement. If the circumstances surrounding the child's care are as bad as the photos portray, Khalifa would be wise to file for primary physical custody. In Pennsylvania, there are two types of custody - physical and legal. Generally parents share legal custody, which allows both of them to participate in making major legal decisions regarding the child's care in areas such as medical treatment and education. 

PA Advance Health Care Directives: Did Bobbi Kristina have one?

So who will decide Bobbi Kristina's fate? Her father or Nick Gordon, her alleged husband?  An advance health care directive would have made this situation a lot easier.  Bobby Brown, Bobbi Kristina's father, is keeping a vigil beside his daughter as she struggles for her life. A statement by Bobby Brown's attorney recently stated that Bobbi Kristina and Nick Gordon were never actually married, even though, outwardly, there was no reason to suspect that they were not.

What does this news that there was never a marriage mean for Bobbi Kristina? Assuming that she never signed an Advance Health Care Directive or living will, if Bobbi Kristina were a Pennsylvania resident, and she was not married to Nick Gordon, then her father, Bobby Brown, would be making all of the medical decisions for her. However, if there was a valid marriage between the two, Nick Gordon would be the decision maker.

In Pennsylvania, we have a law that appoints surrogate medical decision makers for individuals who do not have healthcare power of attorney documents or who have not had a guardian of their person appointed. The law also applies when a person's chosen health care agent is not reasonably available, meaning, for example, that the agent has died or is out of the country. In order for doctors to defer to another person, rather than to the patient herself, the attending physician must declare her to be incapacitated.

The spouse is the first family member doctors turn to for making decisions. If there is no spouse or if a divorce is pending, then the patient's adult children will make decisions for her. If the patient has no adult children and no spouse, then her parents, followed by her siblings, and her adult grandchildren (if any). Finally, only if none of these people are available, will an adult who is intimately familiar with the patient's values and preferences be permitted to make decisions.

In Bobbi Kristina's case, everything depends on whether or not her marriage to Nick Gordon is valid. Simply claiming to be married, calling someone your husband or wife, wearing a ring and living together, are not enough, in Pennsylvania, to establish that a marriage exists. Any couple wishing to wed must do so by obtaining a marriage license and going through all of the legal formalities of marriage.