In order to start the divorce process you must file a complaint in the Common Pleas court where you or your spouse lives. In your complaint or at the hearing, you will have to meet the residency requirement. IN Pennsylvania you or your spouse must have lived in Pennsylvania for at least six months before a divorce complaint is filed. You cannot file until you have met the six month residency requirement.
Divorce: Fault and No-Fault
Divorce is the ending of a marriage ordered by a court., In Pennsylvania there are two types of divorce: fault and no-fault. The fault grounds for divorce in Pennsylvania are:
1. Willful and malicious desertion and absence from the marital home, without a reasonable cause, for the period of one (1) or more years.
3. Extreme cruelty, including any physical or mental cruelty that endangers your safety or health, or which makes continued living together improper or unreasonable.
4. Knowingly entering a bigamous marriage while a former marriage is still existing.
5. Sentenced to imprisonment for a term of two (2) years upon conviction of having committed a crime.
6. Imposed such indignities on the innocent spouse as to render that spouse’s condition intolerable and life burdensome.
7.Insanity or serious mental disorder which has resulted in confinement in a mental institution for at least eighteen (18) months immediately before the filing of the complaint, and where there is no reasonably prospect that the spouse will be discharged from inpatient care during the 18 months subsequent to the commencement of the action.
All fault divorces require court testimony and an appearance by the client. No-fault divorces do not require a court appearance.
No-Fault Divorces in Pennsylvania
Mutual Consent – A mutual consent divorce will be granted where it is alleged that the marriage is irretrievably broken and 90 days have elapsed from the date of the commencement of an action and an affidavit has been filed by each of the parties evidencing that each party consents to the divorce.
Irretrievable breakdown- If the parties have been living separate and apart for a period of at least two years and the marriage is irretrievably broken and the defendant has either:
a) Does not deny the allegations as set forth in the affidavit.
b) Denies one or more of the allegations set forth in the affidavit but, after notice and hearing, the court determines that the parties have lived separate and apart for a period of at least two (2) years and that the marriage is irretrievably broken.
You have a non-contested divorce when both parties reach an agreement on property issues, child , support, alimony, retirement, and any other issue.
Pennsylvania does not have a legal separation process. The date of separation is important in calculating the two-year time period that must pass before one party can obtain a “no-fault” divorce without the consent of the other party. It is also important in determining the value of the martial property. While it is possible to be separated and still live under the same roof, this makes proof of separation more difficult, Parties should live in two different places during the period of separation.
Adultery is sexual intercourse between a married person and someone other than the spouse. In Pennsylvania, neither cunnilingus nor fellatio, which the law defines as sodomy, is a ground for divorce and generally neither is considered adultery. The sexual intercourse must involve some penetration of the female organ by the male organ, but a “completion” of the sexual intercourse is not required.
There probably is no such thing as a pleasant adultery case; because names, dates, places, paramours, and the like have to be brought out in the open. If your spouse no longer cares about what you know and is open about the affair, you’re lucky. You can then catch your spouse flagrante delicto, which means you have your spouse in the flagrant wrong and may not have to worry about hiring detectives. However, you may still need a detective to prove your case in court. There is still a need for a corroborative witness, such as a mutual friend or neighbor, who has no stake in the matter except telling the court what he (she) witnessed.
Most adultery cases are proven by circumstantial evidence, which means that you have to establish that your spouse had the disposition and opportunity to commit adultery.
Public displays of affection, such as hand-holding, kissing, and hugging, between the guilty spouse and the paramour are generally sufficient evidence to indicate an adulterous disposition. Opportunity may be proven by showing that your spouse was seen entering the paramour’s apartment at 11 P.M. and not coming out until 8 A.M. the following morning and that they were alone. If you can only prove disposition but not opportunity, the courts may not allow your divorce because the court may reason that it is just mere speculation. The same is true if you only show that there was opportunity, but cannot prove disposition. When you think about it, this seems to make sense.
Naming the Co-Respondent
Sometimes known as a paramour, the co-respondent is the person whom you charge as having committed adultery with your spouse. The co-respondent has the right to hire a lawyer and file an answer to your complaint. Naming co-respondents can get sticky, particularly if your facts are incorrect. You might be damaging the reputation of an innocent person.
Since Pennsylvania is an “equitable distribution” state, the marital property shall be divided in an equitable fashion. Equitable does not mean equal, but rather what is fair. The court will encourage the parties to reach a settlement on property and debt issues otherwise the court will declare the property award.
In an action for divorce or annulment, the court shall, upon request of either party, equitably divide, distribute or assign, in kind or otherwise, the marital property between the parties without regard to marital misconduct in such proportions and in such manner as the court deems just after considering all relevant factors, including:
1. The length of the marriage.
2. Any prior marriage of either party.
3. The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
4. The contribution by one party to the education, training or increased earning power of the other party.
5. The opportunity of each party for future acquisitions of capital assets and income.
6. The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.
7. The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.
8. The value of the property set apart to each party.
9. The standard of living of the parties established during the marriage.
10. The economic circumstances of each party, including Federal, State and local tax ramifications, at the time the division of property is to become effective.
11. Whether the party will be serving as the custodian of any dependent minor children.
Lien.-The court may impose a lien or charge upon property of a party as security for the payment of alimony or any other award for the other party.
Family home.-The court may award, during the pendency of the action or otherwise, to one or both of the parties the right to reside in the marital residence.
Not all cases involve support from one spouse to the other. The obligation of one spouse to support the other financially for a temporary or permanent basis is decided on a case-by-case basis as agreed to by the parties or at the court’s discretion.
Where a divorce decree has been entered, the court may allow alimony, as it deems reasonable, to either party only if it finds that alimony is necessary.
Factors relevant in determining whether alimony is necessary and in determining the nature, amount, duration and manner of payment of alimony, the court shall consider all relevant factors, including:
1. The relative earnings and earning capacities of the parties.
2. The ages and the
3. The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.
4.The expectancies and inheritances of the parties.
5. The duration of the marriage.
6. The contribution by one party to the education, training or increased earning power of the other party.
7. The extent to which the earning power, expenses or financial obligations of a party will be affected by reason of serving as the custodian of a minor child.
8. The standard of living of the parties established during the marriage.
9. 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.
10. The relative assets and liabilities of the parties.
11. The property brought to the marriage by either party.
12. The contribution of a spouse as homemaker.
13. The relative needs of the parties.
14. The marital misconduct of either of the parties during the marriage. The marital misconduct of either of the parties from the date of final separation shall not be considered by the court in its determinations relative to alimony, except that the court shall consider the abuse of one party by the other party. As used in this paragraph, “abuse” shall have the meaning given to it under Section 6102 (relating to definitions).
15. The Federal, State and Local Tax ramifications of the alimony award. 16. Whether the party seeking alimony lacks sufficient property, including, but not limited to, property distributed under Chapter 35 (relating to property rights), to provide for the party’s reasonable needs. 17. Whether the party seeking alimony is incapable of self-support through appropriate employment.
When minor children are involved in a divorce, the Pennsylvania courts will do everything possible to help lessen the emotional trauma the children may be experiencing. If the parents cannot come to an agreement regarding the issues involving the children, the court will establish the custody order at its discretion.
In making an order for custody, partial custody or visitation to either parent, the court shall consider, among other factors, which parent is more likely to encourage, permit and allow frequent and continuing contact and physical access between the noncustodial parent and the child. In addition, the court shall consider each parent and adult household member’s present and past violent or abusive conduct which may include, but is not limited to, abusive conduct as defined under the act of October 7, 1976 (P.L.1090, No.218), known as the Protection From Abuse Act.
The court shall award sole custody when it is in the best interest of the child. An order for shared custody may be awarded by the court when it is in the best interest of the child: 1.upon application of one or both parents; 2.when the parties have agreed to an award of shared custody; or 3.in the discretion of the court.
Pennsylvania child support guidelines are based on the Income Shares Model for calculating child support. The monthly support amount determined by applying the guidelines is divided proportionally according to each parent’s income. These two support amounts are then offset to establish which parent will pay the other parent for support of the child. All income is typically verified by examining past W-2’s and child support worksheets are available at the courthouse.
Child support shall be awarded pursuant to a Statewide Guideline as established by General Rule by the Supreme Court, so that persons similarly situated shall be treated similarly. The guideline shall be based upon the reasonable needs of the child seeking support and the ability of the obligor to provide support. In determining the reasonable needs of the child seeking support and the ability of the obligor to provide support, the guideline shall place primary emphasis on the net incomes and earning capacities of the parties, with allowable deviations for unusual needs, extraordinary expenses and other factors, such as the parties’ assets, as warrant special attention. The guideline so developed shall be reviewed at least once every four years. (Pennsylvania Consolidated Statutes – Title 23 – Sections: 4322)