A separation and a divorce are significantly different in Pennsylvania. This is primarily because there is no option for a legal separation under Pennsylvania law.
An individual in Pennsylvania may be informally separated from their spouse by living separately from them. This is an essential step when attempting to obtain a divorce under one of the categories of grounds for divorce in the state.
There are four categories of grounds for a divorce in Pennsylvania, including:
- Fault;
- Institutionalization;
- Mutual consent; and
- Irretrievable breakdown.
If an individual wishes to obtain a fault-based divorce, they are required to show that the are innocent related to the situation while one of the following applies to the other party because they have:
- Been convicted of a crime and received a sentence of at least 2 years;
- Committed bigamy;
- Endangered their spouse’s life or health through cruel and barbaric treatment;
- Committed adultery;
- Rendered such indignities against their spouse so as to make your life miserable; or
- Committed willful and malicious desertion of their spouse for at least one year.
An individual can also obtain a divorce from their spouse if their spouse has been committed to a mental institution for at least 18 months and it does not appear that they will be released within the next 18 months. If an individual desires to obtain a divorce from their spouse and they do not want their divorce to be based on something which they did or something that occurred to them, they may be able to obtain a divorce. This can be based on the mutual consent between the spouses or the irretrievable breakdown of their marriage following living separately for at least a year.
Depending upon the reason why an individual is seeking a divorce, the court may require the spouses to attend up to 3 counseling sessions within a 90 day period following filing for divorce. It is also important to note that while an individual can begin an informal separation from their spouse as soon as they move to Pennsylvania, they cannot file for divorce in the state until the individual or their spouse has resided in the state for at least 6 months.
What Paperwork Do I Need to File for Divorce?
In order for an individual to begin the process of obtaining a divorce in Pennsylvania, they will be required to file paperwork, including:
- A Complaint;
- A Notice to Defend and Claim Rights; and
- A Verification.
The Verification authenticates everything the individual stated in their complaint. Although Pennsylvania courts do have standard forms for both the Notice to Defend and Claim Rights as well as the Verification, an individual may be required to draft their own complaint.
If, however, an individual is seeking to file their divorce based upon either mutual consent or an irretrievable breakdown of their marriage, then they will be able to use the standard form for their complaint instead of drafting their own. After the individual files their divorce paperwork, they are required to serve a copy on their spouse and notify their spouse of their intent to obtain a divorce, if they have not already done so.
An individual is typically not required to inform their spouse they are seeking a divorce until they serve them with the divorce papers. However, if an individual is filing their complaint based upon mutual consent, they will have to inform their spouse because consent will be required to obtain the divorce.
What is Community Property vs. Separate Property?
If an individual is getting a divorce in Pennsylvania, any marital property which they share with their spouse will be split between the individual and their spouse. Marital property is property which the individual or their spouse acquired during the marriage which is not otherwise categorized as separate property.
In contrast to marital property, separate property is not subject to division between the spouses. Separate property includes:
- Anything the individual acquired prior to getting married;
- Property that the individual and their spouse agree to keep separate in a written agreement;
- Any gifts and/or inheritance that the individual has received, except for any gifts that they received from your spouse; and
- Veterans’ benefits, which does not include any veterans’ compensation received in lieu of military retirement pay.
Pennsylvania uses equitable division to divide marital property between two individuals during their divorce instead of using the community property concept. This means that the court will divide the property between the individuals in a fair manner, rather than in an equal manner, while considering a number of factors.
The factors which a court will examine when when dividing marital property include:
- The length of the marriage;
- The age and health of each of the spouses;
- Whether one of the spouses significantly contributed to the other spouse’s education or increased earning power;
- The education and income of each spouse;
- The value of any separate property which is owned by each spouse; and
- Which spouse will be awarded custody of the children.
What Should I Do if There are Children Involved?
If there were children born in the marriage, then child custody and child support issues will have to be determined, at least on a temporary basis, while the divorce is pending. Hiring an attorney to handle the issues of child custody and child support following a divorce may be costly.
The amount an individual may be required to pay for a lawyer to handle just those two issues following a divorce may range from $3,000 to $40,000. Although an individual can inform the court what their wishes are regarding the custody of their child, the final decision rests with the court to determine what custody arrangement is best for the child.
In order for the court to determine the best custody arrangement, the court will examine the following factors through the lens of the child’s best interest standard:
- The child’s preference;
- Whether the parent is likely to turn the child against the other parent or to encourage a positive relationship with the other parent;
- Which parent is more likely to provide and maintain a loving and stable relationship with the child;
- The presence of siblings or extended family; and
- The mental health of each parent as well as any other individuals who are living with them.
Once custody issues for the child have been determined, the next main issue to consider is child support. The parent who does not have physical custody of the child may be required to pay the other parent an amount of child support which is based upon their portion of the overall financial obligation which is owed to the child.
Do I Need to Pay Alimony?
In Pennsylvania, a spouse will typically only be granted alimony if a court determines that alimony is necessary. If the court determines that alimony is necessary, it will consider a variety of factors in order to determine the appropriate amount and duration of alimony payments.
Factors which a court will consider when awarding alimony include:
- The length of the marriage;
- Whether one of the spouses would be incapable of supporting themselves, even if they were appropriately employed;
- The standard of living the spouses enjoyed during their marriage;
- The physical health and age of each spouse;
- Whether there was any marital misconduct, such as abuse; and
- The income sources for each spouse.
If an individual’s spouse is already residing with another individual when they request alimony, their request will be denied due to their cohabitation. In addition, alimony will be terminated if either of the spouses passes away or if the receiving spouse remarries.
Where Can I Find the Right Divorce Lawyer?
Whether you are considering filing for divorce or are going through a divorce, it is essential to have the assistance of a Pennsylvania divorce lawyer. A divorce can be an overwhelming, emotional, and difficult experience.
Your attorney will represent you throughout the process and ensure your rights are protected. Your attorney can also assist you in coming to an agreement regarding issues such as property division, child custody, and alimony. Having an attorney will help ensure all parties are treated fairly during what can be a very difficult time.
