Frequently Asked Questions
1. How do you get a No Fault divorce in Pennsylvania?
There are two ways to obtain a No Fault divorce in Pennsylvania. One way is with the consent of both parties and the second way is when one party will not agree. If both parties will consent, there is a 90 day waiting period from the date the divorce complaint is served before the court is able to enter a divorce decree. If one party will not consent, there is a one-year wait from date of separation before the court is able to divorce the parties.
2. Do I have to have the economic issues of my divorce resolved before the Court will divorce me from my spouse?
Yes, except in some very specific circumstances, a divorce decree cannot be entered until the economic issues are either agreed to by the parties or ruled upon by the court.
3. Do I have to actually physically go to Court in order to obtain my divorce?
No. Many divorces are resolved by agreement and the parties never step foot inside a courtroom. The Agreements are submitted to the court by the attorneys, the Divorce Decree is then signed and returned to the parties by mail. The parties only have to go to court for issues that they cannot resolve by agreement.
4. If I leave my home and live in a separate residence, am I legally separated?
Sort of. Pennsylvania does not recognize the status of "legal separation". You are considered either single or married. However, if you live in a separate residence, you would most likely be considered “separated” for purposes of determining the one year period of separation and for determining whether certain assets are considered marital. If you do leave your home, an experienced family lawyer can draft a Separation Agreement which can resolve a number of issues including child support, spousal support, and custody, so the parties do not fight over those issues.
5. Can I be considered separated from my spouse while I reside in the same household with my spouse?
Yes. When the parties remain the same house, the date that they separated is based upon the facts of their specific situation. It is very important to seek the counsel of a good family lawyer to determine what your particular situation would be considered under Pennsylvania Law.
6. Is it important to know when I am considered to be separated?
Yes. The date of separation is the starting point for calculating the one-year period of separation. Also, the date of separation may determine whether certain assets are considered marital and to how much of that asset each party is entitled.
7. When dividing marital property between spouses, is it always a 50-50 sharing of the assets?
No. Although there are cases in which an equal sharing is appropriate, there are many cases where it is not appropriate. The Pennsylvania Divorce Code lists 11 factors that should be considered to determine what percentage of assets each party should receive.
8. Who actually divides our marital property, us or a judge?
It depends on if you and your spouse, either by yourselves or through your attorneys, can agree on the division of property, it will be included in a written document called a Property Settlement Agreement, which gets filed with the Court. Otherwise, the Court will divide your assets after a hearing. A good lawyer will attempt to resolve everything by agreement. You do not want a third party, who does not know you, your spouse or your children, to divide your assets for you.
9. Is all of the property my spouse and I have considered marital property subject to division?
No. Generally, any property acquired by either party between the date of marriage and date of separation, regardless of who purchased it or how it’s titled, is marital property. However, property brought into the marriage by a party or property that is inherited during the marriage is not marital property. Additionally, assets acquired after separation, not derived from a marital source, are not marital property. However, the increase in value during the marriage is considered marital. It is important to consult an experienced family law attorney to help you with these issues.
10. Can I obtain Full (Sole) Custody of my children?
Not usually. Full Custody (meaning the other parent has no custody rights) is only awarded when the other parent has serious issues (alcoholism, drug addiction, physically abusive) that could endanger the safety of the child. Generally, the highest level of custody most parents can get is Primary Physical Custody.
11. If I am being deprived of seeing my children. Is there anything I can do?
Absolutely. If there is not already a custody order, you should contact a good family lawyer who can file a Petition and obtain a court order providing a custody schedule.
12. Is there anything that can be done if one parent refuses to follow a custody order?
Yes. If there is a custody order and the other parent is denying you access, you can file a Petition asking the court to enforce the order and holding the other parent in contempt. Your family lawyer can help you with this.
13. Is there a usual or customary custody order in Pennsylvania courts?
Not really. Although typically the minimum amount of custody for a non-custodial parent is "every other weekend" some non-custodial parents have custody almost half of the time. Custody is a very creative area of the law and schedules should be fashioned to meet the best needs of the parties and children.
14. How is child support calculated in Pennsylvania?
The Pennsylvania Support Guidelines are used to calculate support. The guidelines are based upon a formula that uses the combined monthly income of the parents. In most cases, the amount of each parent’s monthly expenses does not matter. If the combined monthly income of the parties exceeds $30,000.00, per month, child support is based upon the reasonable needs of the children regardless of what the Support Guidelines provide.
15. In addition to child support, does Pennsylvania law provide for support for spouses?
Yes. A mathematical formula is used and if the difference between the spouses’ incomes is large enough, the spouse with the lower income can obtain spousal support in addition to child support. An experienced family lawyer can sit down with you and go through the calculations.
16. What if one spouse is intentionally earning less than he or she is capable of earning?
In Pennsylvania, if a party is intentionally earning less than he or she can, the court will use the amount of income that party should be able to earn based upon their age, education, and work history, rather than what they are actually earning.
17. Are there any direct expenses that are considered by the court in a support action?
Yes. Expenses such as private school, orthodontia, summer camp, psychological treatment, child care and other expenses for the children may be considered and can be made a part of a child support order.
18. Can my spouse or ex-spouse be forced to pay for a portion of our child's college education?
It depends. In Pennsylvania, a parent’s obligation to pay for child support usually ends when the child turns 18 or graduates High School, whichever occurs last, and the court cannot require a parent to pay for their child’s college. However, if a parent has agreed to contribute to college costs, in a written agreement, the court will enforce it.
19. Is Pennsylvania an alimony state?
Yes. For whatever reason, many people incorrectly believe that you cannot get alimony in Pennsylvania, even though it is provided for by the Divorce Code. However, unlike spousal support, alimony is not calculated using a formula. Instead, the Court looks at 17 different factors to determine whether alimony is appropriate, how much it should be per month and how long it should last. An experienced family lawyer should be able to apply the factors to your specific situation and give you a sense of how much alimony you will pay or receive and for how long.
20. Can I get alimony in addition to division of property?
Yes. After a court considers the 17 alimony factors and the 11 property division factors, it may determine that you should receive alimony in addition to the marital assets you receive. However, this decision is based largely on the specific facts of your case. The county in which your divorce is filed also makes a difference as some counties are more likely to award alimony than others. An experienced family lawyer should be able to give you a good idea of what to expect in your specific case.
21. Is alimony taxable to the recipient?
No. Under the newly enacted Tax Cuts and Jobs Act, the person who pays alimony is no longer entitled to deduct it from his or her income, while the party who received alimony is no longer required to claim it as income.
22. How do I go about selecting my family lawyer?
There are many factors you should consider when selecting a family lawyer. First, it is very important to select a lawyer who has significant experience in family law. Although a lot of lawyers publicize themselves as family lawyers, there are far fewer of us who do this exclusively. Second, select a lawyer who you feel is honest and forthright, rather than someone who will tell you what they think you want to hear. Third, your lawyer should be responsive to you. Dealing with family law issues is probably the most emotionally difficult periods of your life. If your attorney is not returning phone calls and not answering emails, that is completely unacceptable. Fourth, select a lawyer who is upfront and honest about billing. Lastly, and I feel most importantly, you have to feel like you connect with and feel comfortable with whoever you hire. You will know who the right attorney is for you when you meet or speak to them.
23. What is Mediation?
Mediation is a process where an experienced family lawyer meets with the two parties to discuss and hopefully come to an agreement on the issues related to a divorce, including custody, support, alimony, and division of property. Unlike a typical case, the attorney acting as the mediator does not represent either party.
24. Why would one select mediation rather than litigation?
There are many reasons. First, mediation is almost always less expensive than litigation because the parties are sharing in the cost of the Mediator instead of each paying separate attorneys. Second, mediation is almost always a faster process than litigation. Third, in mediation, you and your spouse are deciding the division of property rather than leaving those decisions to a Judge, who is essentially a stranger to you and your family. Lastly, and most importantly, in mediation, the parties and Mediator are all working together to reach a common goal as opposed to litigation which is by definition an adversarial process.
25. What cases are appropriate for Mediation?
Mediation will only be an effective process when both parties are truly interested in resolving their issues in a non-adversarial manner. If one or both parties are looking to hurt the other party, inflict pain or get revenge, Mediation will be a waste of time and money.
26. Can any lawyer do Mediation?
Not effectively. You should seek out an attorney who is properly trained and experienced in the Mediation process. I am a seasoned Mediator who has successfully resolved numerous divorce cases amicably.
27. Do I need a premarital agreement?
It depends. If both you and your soon to be spouse are young and come into the marriage with no or very little assets, a premarital agreement is probably not necessary. If this is your second marriage, you are coming into the second marriage with children, you are getting married later in life, or if you have property or investments that you are bringing into the marriage, it is probably wise to have a premarital agreement prepared. You should consult an experienced family lawyer about this. A premarital agreement should not be a cookie-cutter document, but instead, should be based upon your specific situation.
28. What issues are generally covered in a premarital agreement?
The issues that are covered are as varied as the client's needs. Does one party have premarital assets they wish to protect? Does a party wish to provide a formula or a figure for alimony or spousal support in the event of divorce? Does a party wish to exclude income earned during the marriage from marital property? These and a host of other concerns can be covered by a properly drafted premarital agreement.
29. When should I begin the process of having a premarital agreement drafted and signed?
Generally speaking, if you have a wedding date, it is not too early to begin. Oftentimes, people contact a family lawyer several weeks before the wedding date to begin the process. Unfortunately, this serves to place unnecessary pressure on the parties. Starting the process many months ahead of time reduces the stress level of everyone involved.
30. My spouse or significant other is abusive. What can I do about it?
Pennsylvania has a Protection From Abuse Act, which protects a person if he or she is in fear of imminent bodily harm. Stalking is also forbidden. If you have been abused, call the police immediately. They will advise you on how to proceed. Then contact a good family law attorney to discuss your particular situation.
31. What protection does the Protection From Abuse Act provide?
It provides for a number of different protections. If the allegations of abuse are considered severe, the other party may be immediately put out of the house they share. A hearing will be scheduled very promptly and if abuse is found to have taken place, an order may be entered that the abusing party stay away, is evicted from the home and/or is forbidden from being around the victim. Other protections are also provided by the Statute.
32. I have been accused of abuse but I didn't do anything. Will I automatically be found to be an abuser?
Depending on the evidence, it is possible that the Petition for Protection From Abuse may be dismissed by the Court. Be sure to tell you family lawyer all the facts so your lawyer can protect your interests.
33. How long will it take for me to get divorced?
It is impossible to predict. A party can file the divorce complaint and then refuse to consent to a divorce. If either party refuses to consent to the divorce, this will result in the parties having to wait one year from the date of separation (not the date the Divorce was filed) to proceed with the divorce. However, if both parties do consent to be divorced, then there is a 90 day waiting period from the date the divorce complaint is served, after which the divorce can be finalized.
34. How much will my divorce, custody, support or other Family law matter cost me?
Every case has unique issues which need to be addressed. If the parties can reach an agreement to resolve the issues of equitable distribution, custody, and support, an experienced Family lawyer can draft a Property Settlement Agreement and the costs to proceed with a divorce or other domestic relations matter will be much less actually litigating those issues.
35. What if my spouse threatens to quit his or her job to avoid paying support or alimony?
Pennsylvania is an "earning capacity" state. As such, the amount of support a party will pay or receive, should that party voluntarily reduce his or her income, will be calculated on the amount of income that party has demonstrated he or she has the ability to earn.
36. If our marital property is titled in just one spouse's name, will that affect whether the property is marital property or not?
No. Generally how property is titled does not have an impact on whether it is or is not marital property. It is not uncommon for married people to title property in just one name. This does not effect whether it is or is not marital property.
37. Is it permissible for a spouse (or ex-spouse) to move out of state with a child?
Not without court permission or with the permission of the non-relocating party. A party must obtain court permission to relocate. If the other parent is threatening to do this without court permission, you should contact a good family lawyer now to advise you of your rights.
38. My spouse has committed adultery. Will this affect the percentage of marital property to which my spouse is entitled?
No. Pennsylvania is a no-fault state. If one spouse commits adultery or wrongs the other spouse, that does not entitle the aggrieved spouse to a greater portion of the marital estate.
39. My spouse and I are not getting along, and I have asked him/her to leave but he/she refuses to leave. What can I do?
Neither party can require the other party to leave the marital home absent abuse or threats of abuse. If you are being abused or threatened, contact a good Family lawyer today.
40. My spouse has moved out of the marital home and left me with all the bills. What can I do?
You may be entitled to file a motion for child and/or spousal support with the Court asking for a support order. It is in your best interest to consult with an experienced Family lawyer to answer your questions and find out your rights and obligations.