Going through a divorce can be a difficult process for everyone involved. Even a couple that agrees to separate can become quickly entangled in a messy divorce. Deciding how to handle child custody, child support, alimony, and property division can make divorce even more complicated. Having an experienced Pennsylvania divorce lawyer by your side can make sure your rights are protected and your children will be provided for and kept safe.
Divorce in Pennsylvania
In order for a couple to get a divorce in Pennsylvania, one or both of the spouses has to have lived in the Commonwealth of Pennsylvania for at least the last 6 months. The person seeking a divorce files a complaint in the Court of Common Pleas in the county where either spouse lives, or any other county if both spouses agree in writing to file for divorce.
While couples can file for divorce on their own, it is advisable to seek the advice of an attorney before filing for a divorce in Pennsylvania. Having an attorney represent you can help protect your interests and property, especially in a contested divorce.
Fault or No-Fault Divorce
Divorce can be based on “fault” or “no fault” in Pennsylvania. A “no-fault” divorce means that the person filing for divorce does not need to prove that the other spouse was at fault for the failure of the marriage. Traditionally, at-fault divorce was required to be proven to justify giving the parties the legal power to get a divorce.
At-fault divorce requires the person filing for the divorce (plaintiff) to show the other spouse (defendant) was responsible for the failure of the divorce, by doing something wrong. This is an option when one spouse wants to get a divorce and the other spouse does not. Grounds for fault divorce include:
- Desertion for a year or more;
- Imprisonment for 2 years or more;
- Indignities, or continuing conduct by the defendant that make the plaintiff's life unbearable; or
- Endangering the life or health of the plaintiff.
Institutionalization is another divorce option where the plaintiff's spouse is insane or has a serious mental disorder, has been convinced in a mental institution for at least 18 months, and is expected to remain institutionalized for at least 18 months after filing for divorce.
No-fault divorce is the more common type of divorce in Pennsylvania. No-fault divorce includes a divorce where both spouses consent to a divorce, and where one party does not consent but there is an irretrievable breakdown in the marriage. An irretrievable breakdown divorce requires the spouses to have lived apart for at least 2-years prior to filing for divorce.
The “simplest” type of divorce is a no-fault consent uncontested divorce. The spouses can consent to the divorce after 90 days after the complaint has been served. An uncontested divorce means that both spouses agree to get a divorce and usually work together to make the process as smooth and fast as possible. This includes coming to a settlement agreement on child custody, child support, property distribution, and alimony. A simple uncontested divorce can be completed in only a few months.
For an uncontested divorce, the spouses still have to consider issues of property division and spousal support. If one spouse intends to ask for alimony because the spouse cannot support him or herself, alimony should be agreed to or requested as part of filing for the divorce. If the spouse does not ask for alimony as part of the divorce action, the spouse cannot come back later to seek alimony.
Similarly, if a spouse wants an equitable distribution of marital property, he or she has to request marital property distribution as part of the divorce action, otherwise, he or she cannot come back later to request property distribution.
Child custody and child support can be handled separately from the divorce. Either spouse can file an action for child custody, a change in child custody or child support after a no-fault divorce has been granted.
Property division can be agreed on by the parties seeking a divorce, or if the parties cannot come to an agreement, the court will divide marital property. In general, property each individual brought into the marriage remains that individual's property after the divorce. However, marital property is all property acquired during the marriage. Marital property includes consideration of marital debt shared by the couple during the marriage.
Property division can be a contentious process. Even if the spouses believe they have a general agreement as to how to divide the marital property, once it comes to listing assets and deciding who gets one, the individuals may realize they have a different understanding of how the property should be divided.
Pennsylvania is an “equitable distribution” state. The court will divide and distribute the property and assets based on what the court considers to be fair under the circumstances. The court will consider a number of factors in deciding how to divide the marital property, including the living situation after divorce, earning capacity, standard of living, prior support obligations, length of the marriage, age and health of spouses, tax liabilities, and other relevant factors.
Couples generally focus on the major assets in a divorce. However, couples should consider how to allocate all property accumulated during the marriage. If a spouse brings separate property into the marriage, any increase in value during the marriage may be considered marital property. Marital property to be divided during a divorce may include:
- Family home
- Vacation properties
- Rental property
- Business property
- Business assets
- Individual and combined bank accounts
- Stocks and bonds
- Life insurance
- Other property
Child custody can be one of the most complicated issues in a divorce. Child custody in Pennsylvania can be decided between the parents or through the courts. If the parents agree on how to divide and share child custody and responsibilities, the couple may not need to go through the courts to get a court order.
In most cases after a divorce, physical custody and legal custody are shared between parents. However, custody may also involve sole custody by one parent, or supervised visits where another person is present to monitor the interaction between the child and the parent.
When the couple cannot agree on child custody or a dispute arises, the courts will get involved to determine child custody. Child custody orders are based on “the best interests of the child.” In determining the best interests of the child, the court considers a number of factors, including:
- Allowing frequent and continuing contact between the child and parents;
- Risk of harm to the child;
- Parental duties;
- Stability and continuity in the child's education, family life, and community life;
- Availability of extended family;
- Sibling relationships;
- Preference of the child;
- Attempts by a parent to turn the child against the other parent;
- Maintaining a loving, stable, consistent and nurturing relationship for the child's emotional needs;
- Daily physical, emotional, developmental, educational and special needs of the child;
- Child-care arrangements;
- Parental cooperation;
- History of drug or alcohol abuse of the parents;
- Mental and physical condition of the parents; and
- Any other relevant factors.
Shared child custody plans can vary based on how well the parents get along, the distance between parties, work schedules, travel, and education plans. Common joint custody schedules include alternating every week or every other week, including alternating midweek or weekend visit. However, when parents live further away, shared custody may be based around the school year. For example, one parent may have custody of the child during the school year, and the child will visit the other parent during the summer and school breaks.
Child support after a divorce involves payments made to support the costs of raising a child. In most cases, child support is paid by the noncustodial parent to the custodial parent. The amount of child support is determined based on a number of factors, including the income of both parents, number of children, and other support obligations.
Child support is calculated by the court and subject to a child support order. Failure to pay child support can lead to wage garnishment, intercepted tax refunds, property liens, contempt of court, license suspension, and possible jail time.
When circumstances change, either parent may ask the court to modify a child support order. Changed circumstances include:
- Increased childcare costs
- Custody changes
- Discovery of hidden assets
- Moving or relocating
- Additional children
Alimony and Spousal Support
Alimony is financial support for a spouse after divorce. Also called spousal support, alimony is granted after a divorce to provide for the needs of a spouse who does not have enough money or financial resources to provide for themselves. Alimony is available to men or women after a divorce.
Generally, alimony is a temporary type of support, with the amount and duration based on a number of factors, including:
- Each spouse's income
- Duration of the marriage
- Age and abilities of the spouse
- Contributions to the education of the other spouse
- Contributions to the household
- Property and financial resources
- Earning potential of each spouse
- And other relevant factors
Pennsylvania Divorce Lawyer
Divorce can be a difficult process, especially when children are involved. Even if the separation is amicable, having an experienced lawyer on your side can help you make the important decisions to protect yourself and your children's future. Family law attorney David J. Cohen is devoted to representing the people of Pottstown, Pennsylvania, and surrounding areas. Contact the David J. Cohen Law Firm, LLC today for a consultation.