Whether you are the person requesting a divorce (the plaintiff) or you are the one who has been asked for a divorce (the defendant), getting a divorce can be a traumatic experience. It is a time when everything in your life changes – from your tax filing status and your home address, to your life insurance beneficiary and where you spend Thanksgiving dinner.
Amid all of the changes that will take place, it is important to have a trusted guide and legal advisor to protect your interests and those of your children. One of the advantages of having a skilled and experienced attorney by your side is that he or she will explain to you the legal process for divorce in Pennsylvania.
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- ADR Available: Yes
- Fault or No Fault: Both
- Parenting Plan Required: No
- Property Distribution: Equitable
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Grounds For Divorce
Pennsylvania is one of the states in which the grounds for divorce can be either no-fault or fault. A no-fault divorce can be granted by the court provided the couple agrees that there are irreconcilable differences, or the couple has been living apart for two years.
When the plaintiff asks for a divorce citing grounds, the grounds must be proven. Grounds for divorce in Pennsylvania are:
- Cruel and barbarous treatment
- Imprisonment of one spouse for two or more years during the marriage
- Indignities that render the spouse’s condition intolerable and life burdensome
Divorce Waiting Period And Residency Requirement
When the divorce is no-fault, there is a 90-day waiting period, also called a cooling off period, that begins on the date that the couple files for divorce. There is no waiting period when a plaintiff cites grounds for divorce.
One of the spouses must have been a resident of Pennsylvania for six months prior to filing for divorce. The judge has the discretion to order a reconciliation attempt prior to divorce proceedings, and to grant time for that attempt.
Alternative Dispute Resolution (ADR)
One means to divorce is through Alternative Dispute Resolution. This is permitted in Pennsylvania and there is more than one form of ADR including:
- Mediation. A neutral third party works with the couple as a middle person to facilitate conversation and help the couple reach an agreement.
- Early neutral evaluation (ENE). An impartial family law attorney (selected by the couple) provides an evaluation of the case and helps the couple reach an agreement.
- Arbitration. The case is referred to a neutral third party (usually a retired judge) to make legally binding decisions regarding issues such as child custody and division of property.
The advantage of ADR is that it can cost less because the costs are typically shared between the two parties and the ADR process may be accomplished in a more timely fashion. The disadvantage of ADR is that the parties lack an attorney who is dedicated to acting in their individual best interests.
Contested Or Uncontested Divorce
Pennsylvania allows for contested divorce, or finding grounds for divorce, and for uncontested divorce, also call no-fault divorce. A no-fault divorce is typically accomplished in a shorter amount of time and averages about five months. A contested divorce can easily take one year or longer.
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An annulment is a way of ending the marriage by having the marriage declared invalid. It is as though the marriage never existed. Pennsylvania allows an annulment when any of the following are found to be true:
- Fraud, duress, coercion or force of one party on the other to get married
- One of the spouses was still married to someone else (bigamy)
- One or both parties were underage (not yet 18) or were 16-17 and did not have parental permission
- One party was naturally and incurably impotent and did not make the status known to the other party prior to marriage
- One spouse was incapable of consenting (mental deficiency or intoxication, for example)
- The spouses are closely related (half-siblings, cousins)
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Not every marriage involves children, but those that do can find the parents in the unhappy position of spending less time with their children after the divorce. It is important to understand that when the couple decides on a child custody arrangement, the court will typically agree to it, although not always. The court makes child custody determinations according to what is in the best interest of the child or children.
Child Custody Determinations
There are two basic types of child custody, either of which can be sole or shared. Legal custody is the power to make important child-rearing decisions about the child or children, such as religious upbringing, education and decisions regarding medical treatments. Legal custody is typically shared; however, one parent could be given sole legal custody if there are issues of concern regarding the other parent, such as past domestic violence.
The other type of custody is the physical custody, which is holding the parent responsible for food, shelter and other aspects of the child’s life. This, too, is often shared, although sole physical custody is not uncommon.
When physical custody is shared, it may not be shared equally. When that happens, one parent will act as the custodial parent (the main location for the child) and the other parent will be the noncustodial parent (another location with overnight visits that is not the primary location).
If a couple cannot decide on a child custody arrangement, a judge may order the couple into mediation to come to an agreement. If the court is required to make a decision when the parents cannot, the court will look at a number of issues including:
- Are there any drug or alcohol abuse issues?
- Can the parents cooperate and are their homes close, or distant?
- Has any abuse taken place?
- How have the parental duties been performed in the past?
- If the child is old enough, does the child have a preference?
- Is one parent more likely to attend to the daily needs of the child?
- What is the child’s relationship with extended family and other siblings?
- Who is more likely to encourage a positive relationship with the other parent?
- Would one home environment provide more stability than the other?
The court has a preference for shared custody, which can take a variety of forms. The parenting schedule, including holidays and vacations, is outlined in a parenting plan and is part of the divorce agreement. If an employment or health or other situation changes, the parents will need a court-approved child custody modification to make the necessary changes.
A shared custody parenting plan could be an every-other-week arrangement, although an alternating six-month plan could work, as could many other types of arrangements. Children of all ages benefit from consistency, so it is a good idea if the parents can agree on a plan and then stick to it as much as possible.
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In Pennsylvania, as in many other states, both parents are expected to support their child in terms of food, shelter and other needs such as medical care and educational support. In instances where there is a custodial parent and a noncustodial parent, the noncustodial parent can owe the custodial parent child custody payments.
These payments are determined according to a formula which considers three main factors:
- The combined net income of the parents
- The number of children
- The percentage of net income belonging to each parent
There are a number of reasons why a mother or a father may wish to establish paternity. When paternity is established, it carries rights as well as responsibilities. The parental rights could include visitation time or shared custody. The responsibilities would include child support and assisting with things such as medical insurance coverage.
If a couple is married at the time of the child’s birth, paternity is automatically established. Another way to establish paternity is that both parents sign a “Voluntary Acknowledgment of Paternity” or VAP form.
During a divorce, it is not only the parents who have less time with their children due to time-sharing; the other relatives may have the same issue. If grandparents already have a close relationship with the grandchildren and access is being denied, the grandparents can go to court to obtain visitation privileges. As with any issue related to the children, the court will consider the best interests of the child as the primary concern.
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Like many other states, Pennsylvania is a community property state. This means that any assets or debts accumulated during the marriage belong to both spouses. Ideally, the couple will agree on how the property will be divided. If they do not, the court will decide and split the property in a way that it determines is fair and equitable.
It is important to note that the assets as well as the liabilities are divided between the spouses. This means that if there is a credit card with a balance on it, even though it is in one name only, it will be counted among the joint assets and debts.
The property that is divided includes:
- All credit cards and other unsecured debt
- All motor vehicles and similar items such as boats
- All real estate property including the primary residence
- Any collections such as artwork, coins or collectibles
- Household furnishings, clothing and jewelry
- Retirement assets including 401(k)s, IRAs and other funds
- Stocks, bonds and any other similar investments
Alimony Or Spousal Support
Alimony, also called spousal support or spousal maintenance, can be awarded to one spouse in Pennsylvania if certain conditions exist. The alimony can be either temporary or permanent, or a combination of both. A court can award alimony depending on a variety of factors including the length of the marriage, the lifestyle the couple was accustomed to, the income-earning ability of both spouses and other factors.
Prenuptial And Postnuptial Agreements
Before a couple gets married, they may wish to outline how their property will be divided, should they divorce. A prenuptial agreement can also include child custody determinations and stipulations regarding alimony.
A postnuptial agreement is sometimes used for couples who are newly married, and were unable to agree on the prenuptial terms prior to marriage. In other instances a postnuptial or postmarital agreement is written during a time when a couple is in counseling, or having difficulties, although the relationship has not yet deteriorated enough to sue for divorce.
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Occasionally something changes in the lives of the ex-spouses, or their children, and a post-divorce modification is necessary to establish new divorce terms. These changes are usually as a result of something significant such as a major health change (disease diagnosis, for example), a major employment change (loss of a job) or even the weather (tornado or hurricane damage to a home).
When those significant changes occur, it may be necessary to alter child custody, the visitation schedule, child support or spousal maintenance.
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