The Law Offices of

Griffith, Lerman, Lutz & Scheib
110 South Northern Way, York, PA 17402 717-757-7602

Divorce

To initiate a divorce proceeding in Pennsylvania, at least one spouse must reside in Pennsylvania for at least six months.  The Court of Common Pleas, where either spouse resides, will generally have jurisdiction over the divorce proceedings.  The Pennsylvania Divorce Code of 1980 eliminated the need for demonstrating fault I order to grant a divorce.  Presently, the overwhelming number of divorces granted in Pennsylvania are no-fault divorces.  Generally, there are two types of no-fault divorces in Pennsylvania. 

Consent, No Fault Divorce

A consent divorce is when both spouses consent to the divorce.  First, one souse must file a divorce complaint.  The filing spouse states in divorce papers that the marriage is “irretrievably broken.”  This means there’s no reasonable chance to continue the marriage. Both spouses must agree in writing to the divorce, or need to be separated for two years.  Once the divorce complaint is served upon the other spouse, a 90 day cooling off period begins.  This time can be used to resolve all economic issues between the spouses.  Economic issues generally include the division of marital property and determining whether alimony is appropriate.  All economic issues between the spouses must be resolved for a divorce to be granted in Pennsylvania. 

Non-Consent, No Fault Divorce

When one spouse will not consent to a divorce, then the party seeking the divorce may have to wait up to two years.  This two year period begins as of the date of separation.  Separation occurs when the divorce complaint is filed.  It is also possible for the separation to be declared to have occurred prior to the filing for divorce, even if the spouses have resided in the same household. 

In either scenario, all marital property must be divided in order for the divorce to be granted, and the process is legally described as equitable distribution.  It can be negotiated between both parties or decided by the court.  GSLSC proceeds diligently to resolve the economic issues between our client and their spouse without the need for court intervention.  However, when the parties are unable or unwilling to resolve these issues outside of court, we diligently represent our client’s interests and financial well-being. 

Marital Assets or Marital Property

Marital assets include property and income acquired during the marriage. A home, a business, furniture, savings accounts, 401K and other retirement accounts, other investments, and cars purchased during the marriage are examples of marital assets. An asset may still be a marital asset even if it was acquired in only one spouse's name, as long as it was acquired during the marriage. Some assets may be a marital asset with a non-marital component. In that case, the non-marital value of the asset is excluded from the equitable distribution process.

Marital Debts

During the marriage a husband and wife will accumulate some debt. The marital debts are also divided between the parties. A marital debt is a debt that was incurred by the couple after the date of the marriage but before the date of final separation. Marital debts include such items as mortgages, loans, credit card balances, tax obligations and judgments. A debt may be a marital debt even if only one of the parties contracted for the debt as long as the debt was contracted for during the marriage.

Separate or Non-marital Property

Pennsylvania law may allow non-marital property to escape the equitable distribution process. Non-marital property includes property that a spouse brought into the marriage and kept separate during the marriage, inheritances received during the marriage and kept separate during the marriage, and property excluded by a valid prenuptial agreement. In addition, non-marital or separate property may include gifts received by just one spouse during the marriage. However, the increase in value during the marriage of non-marital property may be considered a marital asset if the increase in value was not excluded from consideration in a prenuptial agreement. Furthermore, if a husband or wife decides to use some non-marital funds for a common purpose, such as purchasing a home in joint tenancy, that money normally will become marital property.

Spousal support

In Pennsylvania, the term "equitable distribution" is the legal term for the process of dividing the marital assets and marital debts. If spouses are unable to agree about the division of their marital assets and marital debts, the spouses may elect to engage in the formal court process for equitable distribution.

Dividing Marital Assets and Marital Debts

As stated above, equitable distribution is the process of dividing marital assets and marital debts. Because Pennsylvania is an equitable distribution state and not a community property state, our courts divide marital assets and debts based upon principles of equity, or in other words as it thinks is fair. This division of assets and debts does not necessarily mean that they will be divided on an equal basis.

Under Pennsylvania equitable distribution laws, courts consider a variety of factors and need not weigh the factors equally. This permits more flexibility and more attention to the financial situation of both spouses after the divorce. However, it also makes the resolution of property issues less predictable.

Some of the factors that the court considers in equitable distribution include: the length of the marriage, whether either party had previously been married; whether either party has significant non-marital assets including assets excluded by a prenuptial agreement, the age, health, and income of the parties; whether either party contributed to the increased earning potential of the other; the standard of living of the parties during the marriage; the tax consequences of any award and whether either party will be serving as the custodian of any minor children. Fault in causing the end of the marriage is not a consideration in the equitable distribution process.

Pennsylvania Physical Custody Laws

Physical custody is the actual physical possession and control of a minor child. Pennsylvania statutes further define physical custody based upon the amount of overnights each parent or third party spends with the minor children. There are different types of physical custody, including:

  • Sole physical custody. Sole custody is the award of custody rights to one parent with no custody rights to the other parent. Sole physical custody is rarely awarded by the Pennsylvania family court judges.
  • Primary physical custody. Primary custody is the right of one parent to have the majority of custodial time with a minor child or minor children.
  • Partial physical custody. Partial custody is the right to take possession of a minor child or minor children away from the custodial parent and may include the right to have overnight custody with the child or children.
  • Shared physical custody. Shared physical custody (sometimes referred to as joint physical custody) is the term used to designate frequent and continuing contact between the minor child or children and his or her parents. This term is utilized most frequently by the Pennsylvania family courts when the actual custody time is split anywhere from 60/40 to 50/50 arrangements.
  • Visitation. Visitation is the right to spend time with a minor child or minor children, but not the right to remove the child or children from the custodial parent's presence or control.

Pennsylvania Legal Custody Issues

In Pennsylvania, legal custody is the right to make important decisions that impact children including decisions regarding education, religion and medical care. If parents are able to cooperate in any minimal fashion, legal custody is often shared between the parents. Under a shared legal custody arrangement, whereas the parent who has physical custody on a given day makes routine day-to-day decisions impacting a minor child, the parents share the responsibility for making major decisions

ALIMONY

In order to properly calculate a Pennsylvania spousal support order or advise a client on whether such an order is appropriate at all requires the knowledge of an experienced PA spousal support attorney. Pennsylvania law provides for three different types of support that may be awarded to a financially dependent spouse:

  • Spousal support. Support paid to a financially dependent spouse after the spouses have separated and before a PA Divorce Complaint is filed with the Pennsylvania family courts. Whether or not you were at fault for the divorce may impact your ability to receive spousal support. The person paying support has a right to raise an entitlement defense if you were at fault in causing the break-up of the marriage.
  • Alimony pendente lite (also called APL). Support paid to a financially dependent spouse after the Divorce Complaint has been filed with the family courts. This type of support may be payable until the Divorce Decree is entered and all financial issues involving equitable distribution are resolved by the parties or through court action. The purpose of APL is to permit both spouses to be able to support themselves and have the ability to hire an attorney of their choosing while the divorce action is pending. As such, the payor spouse cannot raise the entitlement defenses available in spousal support actions. In other words, even if the spouse seeking APL has committed a fault-based ground for divorce such as adultery or has abandoned the marriage without a just cause, that spouse may be entitled to APL payments.
  • Alimony. Support paid to a financially dependent spouse after the PA Divorce Decree is finalized and all financial issues involving equitable distribution have been resolved through court action or agreement. After taking into consideration the parties' income and the assets each was awarded as part of the PA equitable distribution order, the court will award alimony only to a spouse that cannot meet their reasonable financial needs when the other spouse has the ability to meet their own reasonable needs and assist the financially dependent spouse. Some situations in which alimony is awarded include those situations when the spouses have a great disparity in income, when the parties had a long-term marriage, when one spouse suffers from a mental or physical disability, or when one spouse primarily cares for minor children who are not yet of school age. Spouses who have committed an act that would be considered a fault-based ground for divorce, may be denied alimony.

Types of Pennsylvania Alimony Orders

There are also different types of alimony that can be awarded:

  • Rehabilitative Alimony. Alimony payments may be awarded to a financially dependent former spouse when that former spouse requires a specific amount of time to "rehabilitate" himself or herself through education or otherwise.
  • Permanent Alimony. Alimony payments that are made to a financially dependent former spouse for the rest of the former spouse's lifetime.
  • Reimbursement Alimony. Reimbursement alimony is alimony awarded to a former spouse to reimburse them for expenses they incurred for the benefit of the other spouse such as when one spouse pays for the majority of marital debt or when one spouse supported the family while the other pursued an education.

In Pennsylvania, alimony, except reimbursement alimony, is usually terminated, unless the order or agreement provides other terminating conditions, when the recipient spouse begins residing with another person in a marriage-like relationship or when the recipient spouse remarries or dies. Rehabilitative alimony may be established for a term of years or based upon some other terminating factor such as the completion of a college education.

Calculation of PA Spousal Support, APL, or Alimony Obligations

In calculating all forms of support payable to a spouse, consideration must first be given to whether the defendant in the support action has any orders for child support and the amount owed on each and whether there are any orders for support of a previous spouse. After consideration of the other orders, spousal support and alimony pendente lite are generally based upon a fixed percentage of the differences in the net incomes or earning capacities of the spouses. In determining the amount of alimony to be awarded, fixed percentages of the differences of incomes or earning capacities are not utilized. Instead, the court will consider the reasonable needs of the dependent spouse and the payor spouse and the amount of money needed to supplement the dependent spouse's income or earning capacity to meet those reasonable needs.

Pennsylvania Marriage Settlement Agreements

Although divorce may be emotional, most cases do not end up in a contested trial. Usually the parties negotiate and settle such things as division of property, spousal support, and child custody between themselves, often with an attorney's help. It may not be possible to predict with complete precision what a judge would do, but an experienced Pennsylvania family law attorney can give a range of possible results. With that knowledge, parties often prefer to reach their own agreements rather than go through the monetary and emotional expense of a trial.

If an agreement is reached, it may be drafted into what is called a marital settlement agreement also called a property settlement agreement. A marital settlement agreement is a contract between the spouses that divides the marital assets and debts and resolves other issues relating to the divorce including child support,

Discovery and Appraisals

Before an agreement can be reached or the parties can proceed to a Pennsylvania family court for equitable distribution, the family law attorneys and the spouses must exchange documentation proving the value of marital assets, the amount of marital debt, and the incomes of both spouses. Sometimes, both spouses have access to this information and can provide it to their attorneys. In other cases, only one spouse has access to the information and refuses to provide the information to the other spouse. "Discovery" is the term used for the formal legal process of compelling the spouse possessing information about the marital assets, marital debts or income of either party to provide copies of the information to the requesting spouse or their attorney. It is certainly much less expensive for the spouses to agree to informally exchange the documentation in their possession and then provide it to their respective family law attorneys than for the family law attorneys to file the formal discovery requests to the other spouse. However, the formal discovery process may be required if one spouse will not voluntarily exchange information or when one spouse attempts to hide the existence of marital assets and discovery must be completed to uncover the hidden assets.

When real estate, pensions, businesses or other types of assets are involved, it is often necessary to obtain an appraisal by a certified expert to determine the value of the asset. These appraisals vary in price depending upon the asset that is being valued, but are a key component in determining the value of the marital estate to be divided in equitable distribution.