Residency Requirements and Grounds for Divorce
Dividing the Property
Alimony
Child Custody and Visitation
Child Support
Residency Requirements and Grounds for Divorce
Either you or your spouse must be a resident of Pennsylvania for at least six months to file for a divorce.
Either spouse can get a divorce by simply stating in divorce papers that the marriage is "irretrievably broken," and either:
- Both spouses mutually consent, in sworn written statements, to the entry of the divorce decree, or
- The spouses have been separated for two years
If the spouses have been separated for less than two years and are not in agreement that a divorce should occur, the spouse wanting the divorce must prove one of the following grounds for divorce:
- Desertion for more than one year
- Adultery
- Bigamy
- Cruel and inhuman treatment endangering the life or health of the spouse
- Imprisonment for two or more years
- Personal indignities
- Confinement in a mental institution without a reasonable prospect of discharge in the near future
The legal divorce process begins when one spouse files a "Divorce Complaint" with the Court of Common Pleas. If the parties are in agreement about property and debt division, as well as child custody and child support matters, the divorce can be finalized without a trial. If the parties can't come to an agreement, the court will set a time for a hearing. If, during the hearing, the court determines there is a reasonable prospect of reconciliation, it will continue the matter for a "cooling-off" period of at least 90 days. The parties are required to attend counseling during this period. If they have not reconciled at the end of the cooling-off period, and the court determines that the marriage is irretrievably broken, it will then grant the divorce.
After the Divorce Complaint has been filed, either party can request temporary assistance from the court in the form of temporary custody and child support orders, and orders to determine who pays community debts on a temporary basis.
Dividing the Property
In Pennsylvania, assets and debts acquired during your marriage -called "marital property" - will be divided "equitably" when you divorce.
But not all property is considered "marital property":
- For example, assets you had before you married may be considered non-marital or "separate property" if you kept that property separated from property acquired during the marriage
- The income produced by a separate property investment may also be non-marital property, as long as it hasn't been "commingled" - mixed together with marital property
- Property you inherit from your family during your marriage will generally be considered your own separate property if it was willed exclusively to you and you did not commingle it with marital property during the marriage.
In deciding how to divide the property owned by divorcing couples, judges will consider a number of factors, including:
- The length of the marriage
- Any prior marriage of either party
- The age, health, station, income, vocational skills, employability, estates, liabilities and needs of each party
- The contribution by one party to the education, training or increased earning power of the other party
- The opportunity of the parties to acquire future income and assets
- Sources of income, including medical, retirement, insurance or other benefits
- The services of each party as a parent, wage earner or homemaker
- The value of the property set apart to each party
- The standard of living the parties established during the marriage
- The tax consequences of the distribution
- With whom the children will reside the majority of the time
It is important to collect all the information you can about all your property, including when you purchased it, approximately how much it is worth, and details such as account numbers, serial numbers and so forth. Collecting this information before you see a Pennsylvania divorce lawyer can save you a lot of time and money.
Alimony
A court can order alimony, as it deems reasonable, to either party in Pennsylvania, but only if it finds that alimony is necessary. Such awards typically are not permanent. In deciding whether to award alimony, a court will generally consider such factors as:
- The relative earnings and earning capacities of the parties
- The ages and health of the parties
- Sources of income, including medical, retirement, insurance or other benefits
- The expectancies and inheritances of the parties
- The length of the marriage
- The contribution by one party to the education, training or increased earning power of the other party
- The extent to which a party's earning power, expense or financial obligations will be affected by serving as the custodian of a minor child
- The standard of living the parties established during the marriage
- The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment
- The relative assets and liabilities of the parties
- The property brought into the marriage by either party
- The contribution of a spouse as homemaker
- The relative needs of the parties
- The marital misconduct of either party during the marriage
- Tax consequences to either party
- Whether the party seeking alimony lacks sufficient property to provide for the party's reasonable needs
- Whether the party seeking alimony is incapable of self-support
A court can order temporary maintenance while the divorce is pending. Most maintenance is ordered for a specific length of time. Once ordered, it can be modified only upon a showing of a "change in circumstances."
Child Custody and Visitation
In Pennsylvania, the court will make child custody decisions solely based upon what is in the best interest and welfare of the child.
In making a custody decision, the court will consider several factors:
- The child's preference
- The ability of each parent to provide for the child's physical, intellectual, emotional well-being
- Which parent is more likely to foster frequent and continuing contact between the child and the non-custodial parent
- Abusive or criminal conduct by either party
The court may award either sole or shared custody if it is in the best interest of the child.
After the custody order is signed by the judge and filed with the court clerk, both parents are bound by it. If a parent is denied court-ordered access to a child, he or she may bring the issue back before the court by filing a "Petition for Modification." If it is in the best interest of the child, the judge may decide to modify the visitation order, order makeup visitation for the time missed and order counseling or mediation.
Child Support
In Pennsylvania, child support is based on the combined net income of the parents and how many children the parent is responsible for supporting. When making a decision about child support, the court must determine the ability of each parent to provide health-care coverage for the children. If necessary, a court can set aside a portion of joint or separate assets of the parties in a separate trust or fund for the support and education of the parties' children.
A Pennsylvania child support order can be modified if there has been a substantial change in circumstances, such as a big increase or decrease in either parent's income or the child reaching the legal age of majority and graduating from high school.
Related Web Links:
- Pennsylvania's Unified Judicial System
- Pennsylvania Domestic Relations
- Pennsylvania Child Support Guidelines
- Pennsylvania Child Support
- Pennsylvania State Profile
- Family Law: Selecting a Good Lawyer
- Pennsylvania Family Law & Divorce message board for more help