Pennsylvania Divorce Law

Residency Requirements:

In order to start the divorce process you must file a complaint in the Common Pleas court where you or your spouse lives. In your complaint or at the hearing, you will have to meet the residency requirement. IN Pennsylvania you or your spouse must have lived in Pennsylvania for at least six months before a divorce complaint is filed. You cannot file until you have met the six month residency requirement.

Ground For Divorce:

Fault Based Divorce:

Divorce is the ending of a marriage ordered by a court. In Pennsylvania there are two types of divorce: fault and no-fault. The fault grounds for divorce in Pennsylvania are:       

• Willful and malicious desertion and absence from the marital home, without a reasonable cause, for the period of one (1) or more years.        
• Adultery        
• Extreme cruelty, including any physical or mental cruelty that endangers your safety or health, or which makes continued living together improper or unreasonable.        
• Knowingly entering a bigamous marriage while a former marriage still exists.        
• Imposed such indignities on the innocent spouse as to render that spouse’s condition intolerable and life burdensome.        
• Sentenced to imprisonment for a term of two (2) years upon conviction of having committed a crime.
• Insanity or serious mental disorder which has resulted in confinement in a mental institution for at least eighteen (18) months immediately before the filing of the complaint, and where there is no reasonably prospect that the spouse will be discharged from inpatient care during the 18 months subsequent to the commencement of the action.

All fault divorces require court testimony and an appearance by the client. No-fault divorces do not require a court appearance.

General or Fault Based Divorce:

Mutual Consent – A mutual consent divorce will be granted where it is alleged that the marriage is irretrievably broken and 90 days have elapsed from the date of the commencement of an action and an affidavit has been filed by each of the parties evidencing that each party consents to the divorce.

Irretrievable breakdown- If the parties have been living separate and apart for a period of at least two years and the marriage is irretrievably broken and the defendant has either:

 

• Does not deny the allegations as set forth in the affidavit.

or

 

• Denies one or more of the allegations set forth in the affidavit but, after notice and hearing, thecourt determines that the parties have lived separate and apart for a period of at least two (2) years and that the marriage is irretrievably broken.

You have a non-contested divorce when both parties reach an agreement on property issues, child support, alimony, retirement, and any other issue.

Legal Separation in Pennsylvania:

Pennsylvania does not have a legal separation process. The date of separation is important in calculating the two-year time period that must pass before one party can obtain a “no-fault” divorce without the consent of the other party. It is also important in determining the value of the martial property. While it is possible to be separated and still live under the same roof, this makes proof of separation more difficult, Parties should live in two different places during the period of separation.

Adultery in Pennsylvania:

Adultery is sexual intercourse between a married person and someone other than the spouse. In Pennsylvania, neither cunnilingus nor fellatio, which the law defines as sodomy, is a ground for divorce and generally neither is considered adultery. The sexual intercourse must involve some penetration of the female organ by the male organ, but a “completion” of the sexual intercourse is not required.

How to Prove Adultery:

There probably is no such thing as a pleasant adultery case; because names, dates, places, paramours, and the like have to be brought out in the open. If your spouse no longer cares about what you know and is open about the affair, you’re lucky. You can then catch your spouse flagrante delicto, which means you have your spouse in the flagrant wrong and may not have to worry about hiring detectives. However, you may still need a detective to prove your case in court. There is still a need for a corroborative witness, such as a mutual friend or neighbor, who has no stake in the matter except telling the court what he (she) witnessed.

Most adultery cases are proven by circumstantial evidence, which means that you have to establish that your spouse had the disposition and opportunity to commit adultery.

Public displays of affection, such as hand-holding, kissing, and hugging, between the guilty spouse and the paramour are generally sufficient evidence to indicate an adulterous disposition. Opportunity may be proven by showing that your spouse was seen entering the paramour’s apartment at 11 P.M. and not coming out until 8 A.M. the following morning and that they were alone. If you can only prove disposition but not opportunity, the courts may not allow your divorce because the court may reason that it is just mere speculation. The same is true if you only show that there was opportunity, but cannot prove disposition. When you think about it, this seems to make sense.

Naming the Co-Respondent

Sometimes known as a paramour, the co-respondent is the person whom you charge as having committed adultery with your spouse. The co-respondent has the right to hire a lawyer and file an answer to your complaint. Naming co-respondents can get sticky, particularly if your facts are incorrect. You might be damaging the reputation of an innocent person.

Spousal Support in Pennsylvania:

Not all cases involve support from one spouse to the other. The obligation of one spouse to support the other financially for a temporary or permanent basis is decided on a case-by-case basis as agreed to by the parties or at the court’s discretion.

Where a divorce decree has been entered, the court may allow alimony, as it deems reasonable, to either party only if it finds that alimony is necessary.

Factors relevant in determining whether alimony is necessary and in determining the nature, amount, duration and manner of payment of alimony, the court shall consider all relevant factors, including:       

• The relative earnings and earning capacities 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.

Child Custody in Pennsylvania:

When minor children are involved in a divorce, the Pennsylvania courts will do everything possible to help lessen the emotional trauma the children may be experiencing. If the parents cannot come to an agreement regarding the issues involving the children, the court will establish the custody order at its discretion.

Below are 15 factors a Judge must consider when deciding child custody:        

• Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.        
• The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.       
• The parental duties performed by each party on behalf of the child.        
• The need for stability and continuity in the child’s education, family life and community life.        
• The availability of extended family.        
• The child’s sibling relationships.        
• The well-reasoned preference of the child, based on the child’s maturity and judgment.        
• The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.        
• Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.        
• Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.        
• The proximity of the residences of the parties.        
• Each party’s availability to care for the child or ability to make appropriate child-care arrangements.        
• The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.        
• The history of drug or alcohol abuse of a party or member of a party’s household.        
• The mental and physical condition of a party or member of a party’s household.

The court must go through each factor that it considered and explain why it decided as it did. The Superior Court of Pennsylvania is strict in upholding this requirement.

Child Support in Pennsylvania:

Pennsylvania child support guidelines are based on the Income Shares Model for calculating child support. The monthly support amount determined by applying the guidelines is divided proportionally according to each parent’s income. These two support amounts are then offset to establish which parent will pay the other parent for support of the child. All income is typically verified by examining past W-2′s and child support worksheets are available at the courthouse.

Child support shall be awarded pursuant to a Statewide Guideline as established by General Rule by the Supreme Court, so that persons similarly situated shall be treated similarly. The guideline shall be based upon the reasonable needs of the child seeking support and the ability of the obligor to provide support. In determining the reasonable needs of the child seeking support and the ability of the obligor to provide support, the guideline shall place primary emphasis on the net incomes and earning capacities of the parties, with allowable deviations for unusual needs, extraordinary expenses and other factors, such as the parties’ assets, as warrant special attention. The guideline so developed shall be reviewed at least once every four years.

Property Distribution in Pennsylvania:

Since Pennsylvania is an “equitable distribution” state, 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.

In an action for divorce or annulment, the court shall, upon request of either party, equitably divide, distribute or assign, in kind or otherwise, the marital property between the parties without regard to marital misconduct in such proportions and in such manner as the court deems just after considering all relevant factors, including:        

• 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, including Federal, State and local tax ramifications, at the time the division of property is to become effective.        
• Whether the party will be serving as the custodian of any dependent minor children.

Lien.-The court may impose a lien or charge upon property of a party as security for the payment of alimony or any other award for the other party.

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.

Disclaimer: The divorce law information provided is for informational purposes only not for legal advice purposes. This information is general in nature. Each jurisdiction has specific code and court procedures. A local divorce attorney is your best source for how divorce is treated in your jurisdiction. Before making any legal decisions we encourage you to consult with a local attorney…do not make decisions based on general state divorce law.