Many times, parties going through a divorce will also face issues of child custody and support. In Pennsylvania, each of these items is handled separately through the courts. If the parties are able to reach a global settlement on all of these issues, it is permissible to compile one document memorializing the agreement between the parties addressing all of the matters. If the parties are unable to agree there could be a formal litigation held in each area.
Divorce in Pennsylvania can either be no-fault or fault based. Before you can file for divorce in Pennsylvania, you or your spouse must have resided in the state for at least six months.
If a divorce is by mutual consent and both parties sign Affidavits of Consent, the court will grant a divorce 90 days after the service of the complaint on the other party. If economic claims have been raised, these claims must be resolved either by consent agreement or Order of Court before a Decree in Divorce will be issued.
If only one spouse wants a divorce and the parties have been separated for at least two years, a divorce may be granted so long as there is not a dispute as to the date of separation. It is important to note that the two year period begins running at the date of separation, not necessarily the filing of the Divorce Complaint. If economic claims have been raised, a Divorce Decree cannot be entered until they have been resolved. If the parties dispute the division of their assets and debts, the Court cannot get involved until the two year waiting period has expired.
Before someone can obtain a fault divorce, two things must be proven. First, that he or she is “innocent and injured,” or not at fault, and second, that misconduct by the other spouse has caused a breakdown of the marriage. Allowable grounds for fault divorce are specified by law, such as violence, bigamy, adultery, abandonment, conviction of a crime, fraud, or insanity.
The court process surrounding fault based divorces is much more time consuming and expensive, as multiple hearings are held in determining fault. Many consider this form of divorce a vestige of the past due to the availability and convenience of no-fault divorces.
A divorce action is like any other lawsuit. It begins with a complaint filed in court and served on the person against whom it is filed. If you receive a divorce complaint, you will have 20 days to respond in the form of an Answer. If additional issues, or counts, need to be raised, a Petition Raising Claims can be filed at any time.
It is important to note that Pennsylvania does not recognize legal separation, although your date of separation is relevant to your divorce. If the parties are still living together it is possible to establish a date of separation if the following three criteria are met:
• The parties’ finances are separate
• The parties no longer share a bedroom or a bed
• The parties no longer hold themselves out to the community as a married couple
Role of the Court
When the court issues a Decree of Divorce, the order may include other matters if they were raised in the proceeding by either spouse. These include disposition of marital property and other property interests; child custody and visitation; child support; alimony; counsel fees and expenses; and enforcement of agreements voluntarily entered into by the parties.
The court may require up to three counseling sessions with a qualified counselor within a three to four month period in the following cases:
* Indignities are used as ground for the divorce and counseling is requested by either person;
* Either no-fault ground is used and counseling is requested by either person; and
* In certain cases where there are children of the marriage under 16 years old
The court has the power to award preliminary counsel fees to the dependant spouse. In addition, in the final order, after the property rights of the parties are determined, the court could direct the parties to pay their own costs and fees, or it may divide the costs and expenses equitably between the parties. Payment and recovery of costs and attorneys’ fees are matters to be discussed with your lawyer during the initial meeting.
An annulment may be sought for marriages that are by law invalid or which may be declared invalid by a court. Marriage is a contract, and if either individual was unable to enter the contract because of intoxication, being under age, or fraudulent inducements, the court may determine that no contract of marriage ever existed. If you think that an annulment may be appropriate in your situation, discuss the matter with a lawyer.
Division of Property
Most married couples own their real property as “tenants by the entireties.” This form of joint ownership means that neither spouse can sell property during the marriage without consent of the other. Upon divorce, however, unless the parties have a written agreement providing for the division of the property, the court has the power to divide the property based on equitable principles. This means that the court will take may factors into account when arriving at a fair, but not necessarily equal, division. There are eleven factors that the court considers when equitably dividing a marital estate.
The court takes into consideration both spouses’ economic and non-economic contributions to property acquired during the marriage. If neither you and your spouse nor the court divide the real property, then the nature of your ownership automatically changes after divorce and you both become “tenants in common.”
The Divorce Code provides that all property acquired by either spouse during the marriage, with certain exceptions like gifts and inherited property, is martial property, regardless of in whose name the property is held. It should be noted that the increase in value during the marriage of gifts, inherited property, and premarital property which remain in one party’s name, will also be considered marital. Marital property may be divided equitably by the court or through a consent agreement.
Household items, such as drapes, carpets, furniture and appliances are generally not titled in either spouse’s name. Unless you can show a different intent, the law treats all such property as being jointly owned and used for the benefit of both spouses, regardless of who actually paid for it. As part of the divorce, the court may consider these things as marital property and distribute them accordingly.
No matter whose name is on the account, you are both owners of the funds. If one spouse draws all of the money out of an account, her or she may have to account to the other for the money, no matter who originally put the funds into the account or if the account is titled in only one name. As part of the divorce, the court may consider the bank accounts as marital property and equitably divide the funds, regardless of whose names were on the accounts or which party primarily contributed to the account.
Each spouse owes support to the other as long as they are legally married. A court may require a spouse to contribute to the support of the other. The amount of support is determined by considering the income of each spouse or their earning capacities. Both parents have a responsibility to support their children. This obligation exists even if the parents are not married and it continues after a divorce. If parents cannot agree on who is entitled to custody of the children, the court will determine the custodial arrangement that is in the best interest and welfare of the children.
There are three types of spousal support in Pennsylvania depending in which stage of the process your divorce is:
• If the parties are separated but no Divorce Complaint has been filed, a dependent spouse may be entitled to spousal support. The formula used to derive the support figure is as follows: Independent spouse’s monthly net income minus dependent spouse’s net income (or earning capacity) minus any child support; the net difference is then multiplied by 30% (or 40% if there are not children) to determine the basic support obligation. Any activity that would be the basis for a fault based divorce can be a defense to spousal support and may negate the dependent spouse’s entitled to spousal support. Fault has no bearing on child support.
• If a Divorce Complaint has been filed but no final Divorce Decree has been entered, a dependent spouse is entitled to alimony pendente lite (APL). The same formula described above is used but there are no defenses applicable to the award of APL.
• After a Divorce Decree has been entered, a dependent spouse may be entitled to alimony. Alimony is secondary remedy and should only be awarded if the division of the marital estate is not sufficient to help the dependent spouse get back on his or her feet. There is no formula to determine an alimony award, however, it is based upon the financial need of the dependent spouse and the length of the parties’ marriage. Generally, a dependent spouse will not be entitled to alimony if his or her unfaithfulness was the precipitating cause of the divorce.
A parent seeking custody or visitation rights may file a complaint in the country where the child has lived for the past six months. In many counties, a conference will be held with an appointed hearing officer to determine whether or not an agreement by the parents can be made. Most counties required an educational seminar be attended by both parents and that children of appropriate ages attend an educational program. If an agreement is not made, home studies and/or psychological evaluations are commonly ordered by the court. Finally, a hearing is held by the court at which all the evidence is presented and a determination is made. In most cases, the court will talk with the children to learn their feelings and preferences before making a decision.
If the parents are not able to agree, the court will determine the custodial agreement which is in the best interest and welfare of the children. The most common arrangement is for one parent to have primary custody while the other parent has temporary partial custody at various times during the year. However, the law no longer gives special preference to mothers over fathers. The result in any given case will depend on the particular facts and circumstances of that case. Many counties and judges now believe that the ideal custody situation is an equally shared schedule.
An award of sole custody to one parent with no custody or visitation rights to the other is rare. More frequently, one parent may have primary custody subject to the other parent’s partial custody. It is not uncommon for a court to allow a non-custodial parent to have input in making major decisions concerning the well-being of the children if the court find that both parents are fit parents and are able to communicate effectively with each other in the interest of their children. This is known as legal custody. It is important to differentiate between legal and physical custody when entering into a custody order.
As children get older, greater consideration is given by the court to the child’s preference as to which parent he/she wishes to reside with. It is important to note, however, that a child is never old enough to choose which parent to live with, absent an agreement by the parents. An important factor considered by the court in determining custody is that the children continue to live in a familiar and stable home environment. Courts are reluctant to disturb an existing arrangement or to move children from their current school district if the children are doing well. The courts are also reluctant to split siblings between parents.
Denial of visitation or custody rights is not a lawful excuse for ignoring a support order. A person has the right to go to court to enforce visitation or partial custody rights, but it is a separate proceeding. Refusing to pay support because of denial of visitation or custody rights will only result in legal action being taken to enforce the support order.
An order of court establishing custody or visitation rights may always be modified providing that the change is in the best interest and welfare of the children. If a person willfully does not comply with a court order, that person could be cited for contempt of the court order and the other parent will be entitled to make up time with their children. Courts do not look favorably upon a parent that has willfully withheld the children from the other parent and it often negatively affects their custody litigation.
According to the law, both parents have a responsibility to support their children, which continues even after a divorce. In determining the amount of child support to be paid by one parent or the other, the court will consider the incomes of both parents or their respective earning capacities. Statewide support guidelines establish a presumptive amount of support, with the primary emphasis placed on income. A copy of these guidelines is available at the domestic relations office at your county courthouse.
Once a child reaches the age of 18 or graduates from high school, the parents generally are no longer required to support that child. However, if the child is unable to support himself/herself because of a physical, mental or emotional disability, the duty of support may continue beyond the age of 18. Parents are not required to pay support to a child who is attending college unless they have mutually agreed to do so in writing. Support may include, above the recommended guideline amount, medical coverage for children, payment of un-reimbursed medical expenses, and contributions to day care/babysitting costs for children while the custodial parent is working or going to school.
A person seeking support may file a complaint for support in the domestic relations section of the trial court for no charge. If a support order is entered, the payee will be required to pay a yearly fee.
Generally, a conference will be held with a hearing officer at which both parents will be required to disclose their income and expenses. An attempt will be made by the hearing officer to have the parties reach an agreement as to the amount of support, if any. If an agreement cannot be reached, the usual procedure is for the hearing officer to submit a recommendation to the court as to the nature and amount of support that should be awarded. The court will enter an order of support based on that recommendation. If either party is not satisfied with the court order, he/she may demand a hearing before the court at which the order could be modified. When both parties exhaust their appeal rights, it will become the final order.
In Allegheny County, the support process is slightly different. The conference officer does not have the authority to enter a recommendation and if the parties are unable to reach an agreement they will be sent to hearing held on the same day. The Hearing Officer will hear testimony and accept evidence and will issue a recommendation within 30 days. If either party is not satisfied with the recommendation, they may file exceptions to be reviewed by the judge.
Either spouse or parent may seek an increase or reduction in the amount of support in the final order if he/she can show that a substantial change of circumstances has taken place since the order was entered by the court. An increase or decrease in earnings by the spouse or parent or in the needs of the children are examples of substantial changes in circumstances.
In almost all cases, a support obligation will be directly garnished from the payor’s wages. If a party fails to pay, a judgment may be entered by the court against that person for the total amount of support that has not been paid in the past, requiring him/her to pay all that is owed. Failure to obey a court support order could also result in a term of imprisonment.
Support orders entered into in one state will be enforced in other states which have adopted a reciprocal support law. The Uniform Interstate Family Support Act has been adopted in Pennsylvania. If the whereabouts of the parent who is paying support are unknown, the federal government can provide assistance to courts to locate the missing parent.