Divorce and Support

NO FAULT DIVORCE VS. FAULT DIVORCE PENNSYLVANIA

The Complaint for Divorce must declare the appropriate Pennsylvania grounds upon which the divorce is being sought. The appropriate lawful ground will be that which the filing spouse can substantiate and desires to prove to the court's satisfaction or upon facts that the parties can agree upon.

The traditional fault grounds are:

1. Committed willful and malicious desertion, and absence from the habitation of the injured and innocent spouse, without a reasonable cause, for the period of one or more years;
2. Committed adultery;
3. Cruel and barbarous treatment, endangering the life or health of the injured and innocent spouse;
4. Knowingly entered into a bigamous marriage while a former marriage still exists;
5. Been sentenced to imprisonment for a term of two or more years upon conviction of having committed a crime;
6. Offered such indignities to the innocent and injured spouse as to render that spouse's condition intolerable and life burdensome.

WHY CHOOSE A FAULT DIVORCE?

Some people don't want to wait out the period of separation required by the state's law for a no fault divorce. And, a spouse who proves the other's fault may receive a greater share of the marital property and or alimony.

What if both spouses are at fault?

When both parties have shown grounds for divorce, the court will grant a divorce to the spouse who is least at fault under a doctrine called "comparative rectitude." Years ago, when both parties were at fault, neither was entitled to a divorce. The absurdity of this result gave rise to the concept of comparative rectitude.

WHAT IS A "NO FAULT" DIVORCE?

A "No Fault" divorce describes a divorce where the spouse asking for a divorce does not have to prove that the other spouse did something wrong.

There are two types of No Fault Divorces in Pennsylvania: "Irretrievable breakdown of the marriage" and "Mutual Consent."

In an irretrievable breakdown divorce, the court may grant a divorce where a complaint has been filed alleging that the marriage is irretrievably broken and an affidavit has been filed alleging that the parties have lived separate and apart for a period of at least two years, and that the marriage is irretrievably broken.

In a mutual consent divorce, the court may grant a divorce where it is alleged that the marriage is irretrievably broken and 90 days have elapsed from the date of commencement of an action under this part, and an affidavit has been filed by each of the parties evidencing that each of the parties consents to the divorce.

DO I HAVE TO LIVE IN PENNSYLVANIA TO GET A DIVORCE HERE?

Yes. Pennsylvania requires a spouse to be a resident of the state for at least six months before filing for a divorce here. Someone who files for divorce must offer proof that he or she has resided here for the required length of time.

If you think that your spouse may file for divorce in another state, it may be prudent to spend the money up front and file first. Rarely is a divorce settled in one court appearance, and, if your spouse files elsewhere, you could rack up a lot of traveling expenses. Also, any modifications to the divorce decree, including the property settlement agreement and arrangements for child custody and support, must be filed in the original state. This could keep you traveling out of state for years to come, especially if you have children with your spouse.

EQUITABLE DISTRIBUTION OF MARTIAL PROPERTY

Pennsylvania is an "equitable distribution" state; i.e., 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.

The court shall, upon request of either party, equitably divide the marital property between the parties without regard to marital misconduct in such proportions and in such manner as the court deems just. The relevant factors considered by the court will include but are not limited to:

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.

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.

ALIMONY

If you're facing a divorce, you'll have to face reality: Alimony payments (monthly support payments one divorced spouse pays the other) are alive and well in the Pennsylvania divorce system. And if you earn substantially more money than a spouse to whom you have been married for a period of years, there is a chance you will be ordered to pay some alimony. On the other hand, alimony generally isn't awarded for short marriages or where you and your spouse earn close to the same amount.

If alimony is ordered, you will generally have to pay a specified amount each month until:

1. A date set by a judge several years in the future;
2. Your former spouse remarries;
3. Your children no longer need a full-time parent at home;
4. A judge determines that a reasonable period of time is needed for your former spouse to become at least partially self-supporting;
5. Some other significant event -- such as retirement -- occurs, convincing a judge to modify the amount paid, or one of you dies.

As with most issues in your divorce, you and your spouse can agree to the amount and length of time alimony will be paid. But if you can't agree, a court may set the terms for you if it determines that alimony is appropriate. Unfortunately, having a court make the decision means there will be a trial, and that can cost you a lot of time and money.

If you expect to pay alimony: The fact you have to pay alimony to your ex-spouse doesn't amount to a finding that you are a bad person. Consider it part of the cost of entering a marriage that you probably thought would last until death parted you, but, for reasons you didn't anticipate, did not.

If you expect to receive alimony: The question of whether you qualify for alimony is usually resolved by looking at factors relevant in determining whether alimony is necessary. 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 physical, mental and emotional conditions of the parties;
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.);
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 Equitable Distribution (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.

You might also be required to make some changes in your life and work. (If you have a part-time job that doesn't pay well, you may be required to attempt to find full-time employment in a better-paid field. Experts called vocational evaluators are sometimes hired to report to the court on the job prospects for a spouse who hasn't been fully employed for a while.)

IF YOUR SPOUSE REFUSES TO PAY

Finally, if you secure an alimony order but your spouse refuses to make the required payments, you should take immediate legal action to enforce the order through a "contempt" proceeding or a "wage attachment order." Orders to pay monthly alimony have the same force as any other court order and, if handled properly, can be enforced with the very real possibility of obtaining regular payments. If necessary, a court may jail a reluctant payor or revoke professional licenses or driver's licenses to enforce its orders.