Family Law – FAQs

A: How to get a divorce in Pennsylvania:

There are two basic types of divorce: Fault and No-Fault

Fault: One of the spouses has committed marital misconduct, such as adultery or abuse

No-Fault: Spouse does not have to prove that the other spouse committed marital misconduct

Two (2) ways to obtain a No-Fault divorce:

1. CONSENT DIVORCE: If both parties agree to a divorce, one party files a divorce complaint, and after 90 days expires from the filing and serving of the divorce complaint, both parties can sign a consent to allow the divorce to be granted. A spouse cannot force the other spouse to sign a consent.
2. SEPARATION: If one spouse refuses to consent to the divorce and there are no grounds for a “fault” divorce, the other spouse will have to wait for one year from the “date of separation” after which he/she can proceed to obtain a divorce without the consent of the other spouse.  If the date of separation is before December 4, 2016, the waiting period is two years. The “date of separation” will be an important date in connection with this type of divorce. The parties can be separated but still live together in the same house. As this determination is fact-sensitive, you should discuss this with your attorney as soon as you believe that you want to separate.

A: Divorce issues that a court might address in particular situations:

• Child support – support given to the parent who typically has custody of the child(ren) of the parties; may also be awarded in shared custody cases

• Spousal support – support to the spouse who has less income, awarded if the parties are separated, and prior to a divorce being filed or granted

• Alimony pendente lite – this is similar to spousal support, but is awarded after a divorce complaint has been filed but before a divorce is granted

• Alimony – support given to a spouse after a divorce is granted

• Child custody – the determination of the parenting arrangements for the children (includes both physical and legal)

• Equitable Distribution – the distribution of the property and debts of the parties between the parties. As the court seeks to achieve a fair distribution, the court does not necessarily have to direct an “equal” distribution between the spouses

• Counsel Fees & Expenses – the court can direct that one spouse pays all or part of the other spouse’s attorney fees and costs

Note: Pennsylvania has support guidelines (Pennsylvania Rule of Civil Procedure No. 1910.16) to help determine the amount of child support, spousal support, or alimony pendente lite that can be awarded. There are no specific monetary guidelines for alimony. These guidelines can be deviated upward or downward, to include additional money for a spouse to remain in the marital home and pay the mortgage, for extra-curricular activities for the children, for private school tuition, daycare, unreimbursed medical costs or prescription co-pays, or for other matters that the court may consider under the law.

A: The different types of custody:

• Legal Custody – the authority to make decisions regarding the child(ren) (medical, school, religious, etc.)
• Shared Legal Custody – the parents share this authority to make decisions regarding the child(ren) (medical, school, religious, etc.)
• Physical Custody – where the child(ren) physically resides
• Primary Physical Custody – the parent with whom the child(ren) primarily resides
• Shared Physical Custody – An arrangement by which the residence of the child(ren) is split between the parents’ respective residences
• Partial Custody – Custody time for the parent with whom the child(ren) resides less than 50% of the time (may include supervised or unsupervised, and may not involve keeping a child(ren) overnight)

A: The best way of establishing a custody arrangement is for the parents themselves to discuss what is best for their child(ren) and to work out a mutually agreeable parenting arrangement that best serves their family needs and schedules.

Alternatives to court litigation include the use of the services of a Mediator or a Parent Coordinator to assist in the parties’ achieving this goal.  Custody arrangements often change as the child(ren) grow older, schedules change, etc.

If the parties are unable to achieve a parenting arrangement that they both can agree to, then the court will make this decision for them.  The goal of the court is to do what is in the “best interest” of the child(ren) at all times.  The court will consider all relevant factors, including the level of conflict between the parents, any history of abuse and criminal history of the parents, work schedules of the parents, each parent’s involvement with the child(ren) (including activities, education, etc.), the school district for the child(ren), the age(s) of the child(ren), the living arrangements of the parents, special needs of the child(ren), concerns for the physical and emotional health of the child(ren), etc.

The older and more mature a child(ren) is, the more persuasive that child(ren)’s wishes about custody will be in the court’s decision making.  While there is not a “magic age” that a child(ren) reaches which will allow the child(ren) to dictate the custody schedule, it is to be expected that more weight will be given to the wishes of a 14 year old child(ren) than may be given to the wishes of a 7 year old child(ren).

Nonetheless, the court will listen to what a child(ren) has to say provided that the child(ren) is competent to testify.  The parenting arrangement must “make sense” for the child(ren) and the parents, and must be in the best interests of the child(ren).  When parents cannot agree upon what is in the best interests of their child(ren), the court will make this determination.

There are times that a court will appoint a child psychologist to evaluate the parents and child(ren) to assist in the determination of what is in the best interests of the child(ren).  This cost is usually allocated between the parents, often based upon their respective incomes.  The cost is also often dependent on the total income of the parents if the court uses a sliding scale to determine the cost of the evaluation.

A: In Pennsylvania, the process of distributing property and debts between the spouses is called equitable distribution. As the court seeks to divide these “fairly” between the spouses, it need not be an equal distribution.

The court will take many factors into consideration when determining equitable distribution. The following factors that are relevant for the court to consider include those set forth under Pennsylvania law, 23 Pa. C.S. § 3502 (a):

• The length of the marriage.
• Any prior marriage of either party.
• The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
• The contribution by one party to the education, training or increased earning power of the other party.
• The opportunity of each party for future acquisitions of capital assets and income.
• The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.
• 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.
• The value of the property set apart to each party.
• The standard of living of the parties established during the marriage.
• The economic circumstances of each party at the time the division of property is to become effective.
• The Federal, State and local tax ramifications associated with each asset to be divided, distributed or assigned, which ramifications need not be immediate and certain.
• The expense of sale, transfer or liquidation associated with a particular asset, which expense need not be immediate and certain.
• Whether the party will be serving as the custodian of any dependent minor children.

A: Some examples of property that is subject to equitable distribution and may be divided between spouses:

• Pension Plans
• 401(K) Plans
• TIAA/CREF Accounts
• Thrift Savings Plans
• Retirement Savings Plans
• Annuities
• IRAs
• Stock Options
• Stocks
• Family Home
• Real Estate
• Bank Accounts
• Money Market Accounts
• Investment Accounts
• Mutual Funds
• Savings Bonds
• Life Insurance (Cash Surrender values)
• Vehicles
• Boats
• Businesses
• Limited Partnerships
• Partnerships
• Collectables, such as antiques, coins, gun collections, tools, etc.
• Household Contents

A: Your attorney will assist you in the ways available to value assets and as to what date will be used to value the assets.

For example, real estate can be valued either by an agreed upon value by the spouses or by a real estate appraiser.

If a spouse has a pension plan, it can be valued by an actuary or by a C.P.A.

If a spouse owns a business, it can be valued by a forensic C.P.A.

Life insurance can be valued by its cash surrender value.

Stock values can be found on internet sites or in the Wall Street Journal.

Bank account values can be found on bank statements.

Statements for 401(k) plans, IRAs, etc., can be found on the statements issued by the financial institution where the funds are invested.

A car can often be valued by using the Kelly Blue Book value, or having it appraised at a car dealer.

Collectables (antiques, coins, guns, etc.) can be valued by an appraiser familiar with the particular items.

Your attorney will assist in gathering all of the information needed to identify and value assets. This is done either informally between the parties as they voluntarily exchange the necessary documentation, or formally through a legal process called “discovery,” where your attorney can require the other party to produce documentation or answer questions under oath.  The documentation may also be obtained directly from the person or company/institution that has the information.

For example, information on bank accounts or investments can be obtained directly from the investment company or bank. Information on a spouse’s retirement or savings plan can be obtained directly from the employer. This assures that you will have accurate and complete information on the assets and debts to enable you to make confident decisions about distribution of assets and debts.

A: An alimony award is a continuing payment to a spouse even after the divorce is granted and the property and debts are distributed. There are no specific financial guidelines for alimony, as there are for spousal support, alimony pendente lite or child support. Alimony is based on the needs of the spouse. There are many factors that a court must consider when determining an alimony award.

In determining the nature, amount, duration and manner of payment of alimony, the court must consider all relevant factors, including those statutorily prescribed for at 23 Pa. C.S. § 3701 (b), which are as follows:

• The relative earnings and earning capacities of the parties.
• The ages and the physical, mental and emotional conditions of the parties.
• The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.
• The expectancies and inheritances of the parties.
• The duration of the marriage.
• The contribution by one party to the education, training or increased earning power of the other party.
• 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.
• The standard of living of 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 to the marriage by either party.
• The contribution of a spouse as homemaker.
• The relative needs of the parties.
• 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).
• The Federal, State and local tax ramifications of the alimony award.
• 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.
• Whether the party seeking alimony is incapable of self-support through appropriate employment.

A: While Pennsylvania law does not provide for the issuance of a “legal separation,” spouses can separate without the need to file for divorce.

During the period of separation, a spouse can file for spousal support, child support or child custody.  The court will not deal with issues of property distribution if there is no divorce complaint filed.

Nonetheless, spouses can always reach agreements on all issues arising out of the divorce even if a divorce complaint has not yet been filed.

Often spouses will use the services of a Mediator to reach amicable agreements on all issues relating to their separation and divorce; this can be completed prior to anyone filing for divorce.

It is recommended that you consult with an attorney regarding your intentions to separate prior to actual separation, so that you will know what to expect in connection with your rights and obligations.  It is important to have a strategy in place in order to protect your rights and to prepare for your obligations.

A: A PFA is a Petition for a Protection From Abuse Order. This is available even if there is no separation and no divorce filed. A PFA is to protect a spouse from abuse from the other spouse, from a family member, or from an intimate partner, even if you are not married. A parent may also obtain a PFA on behalf of his/her minor child(ren) against the other parent.

The Pennsylvania PFA Act is set forth in 23 Pa.C.S. Section 6101 et. seq.  The PFA Act defines “Abuse” as the occurrence of one or more of the following acts between family or household members, sexual or intimate partners or persons who share biological parenthood:

• Attempting to cause or intentionally, knowingly or recklessly causing bodily injury, serious bodily injury, rape, involuntary deviate sexual intercourse, sexual assault, statutory sexual assault, aggravated indecent assault, indecent assault or incest with or without a deadly weapon.
• Placing another in reasonable fear of imminent serious bodily injury.
• The infliction of false imprisonment pursuant to 18 Pa.C.S. § 2903 (relating to false imprisonment).
• Physically or sexually abusing minor children, including such terms as defined in Chapter 63 (relating to child protective services).
• Knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person, without proper authority, under circumstances which place the person in reasonable fear of bodily injury. The definition of this paragraph applies only to proceedings commenced under this title and is inapplicable to any criminal prosecutions commenced under Title 18 (relating to crimes and offenses).

A: A Prenuptial Agreement is a contract between couples intending to get married. There are different reasons that people will enter into these contracts and different matters that the parties will address in them. Some of the common reasons for a prenuptial agreement include:

• to protect the interests of children from a previous marriage;
• to protect separate assets owned by the parties prior to the marriage;
• to define the intended personal and economic relationships during the marriage;
• to prevent costly divorce litigation in the event of a separation or divorce of the parties;
• to define rights of inheritance in the event of a death of one of the parties.

A Prenuptial agreement often involves the waiver of personal rights in the event of a separation or divorce, or in the event of a death of one of the spouses during the marriage. It can address only one matter, or it can address many matters.

Prenuptial agreements oftentimes address issues of the parties retaining their separate property that they each owned prior to marriage, with the other party waiving any claims to that property. It will often address the rights of support, alimony pendente lite, alimony, equitable distribution, and other rights arising out of a marriage. Many times, a prenuptial agreement will address the rights of the parties in the event of a death of a spouse, including what will happen to that party’s separate property.

It is recommended that you never sign a Prenuptial Agreement until you have had your own attorney thoroughly review it with you.

You need to have an understanding of your rights and what you may be giving up, and the impact that this may have on your future.

It is also recommended that if a couple intends to enter a prenuptial agreement, it should be discussed, drafted and reviewed well in advance to the wedding date, to allow for sufficient time to identify all of the intentions of the parties and to properly draft the agreement, allowing time for all to review and consider.