Over the years, the family lawyers at High Swartz have represented many divorce clients, and not infrequently the same questions are asked over and over again. In order to anticipate the questions that you may have, this information has been prepared in the hope that it will be useful to you.
The information below is broken down into 3 sections: Pennsylvania Law as it pertains to you and your situation, your relationship with your spouse, and your relationship with your lawyer. Within each section you will find pertinent questions answered that will make big concepts understandable. After reading this, we hope that you find you are more informed of what needs to be done right now, when managing the relationship with your spouse, and subsequently making a very big decision – choosing a family lawyer. It’s that last part that we feel is the most important decision you will make throughout your process.
Please remember that Pennsylvania divorce law is in a constant state of flux and this information should not take the place of a Family lawyer’s advice or guidance.
Pennsylvania Divorce Law – a General Overview
Before July, 1980, Pennsylvania was unique in that it was the only state in the country which retained a strictly fault system of divorce without any provision for equitable distribution of property acquired during the marriage or post-divorce alimony. Pennsylvania enacted divorce reform legislation which became effective in July 1980, known as the 1980 Divorce Code. The Code has been amended since 1980; and those amendments are reflected in this summary.
Under current PA divorce law, most of the traditional fault grounds for divorce have been retained and two grounds of the “no-fault” variety have been added. Under the “mutual consent” no-fault ground, a divorce may be obtained after a ninety-day waiting period after service of the divorce and both parties consent in writing. Under the “unilateral” no-fault ground, a divorce may be obtained upon the request of either party when the parties have been separated for two years if the final separation was pursuant to difficulties in the marriage. If the parties dispute the date of separation, the court will determine at what point there was public awareness of the parties’ separation. Under certain circumstances, the court may require the parties to attend up to three marriage counseling sessions.
The law provides for post-divorce alimony when “necessary”, and it provides for equitable distribution of all property (assets and liabilities) acquired by either or both of the parties during the marriage, with certain exceptions.
Grounds for Divorce
Under the prior divorce law, divorces were only granted on fault grounds, which require that one spouse demonstrate that he or she is relatively blameless and that the “fault” committed by the other spouse (typically indignities, but also adultery, desertion, cruel and barbarous treatment, etc.) against the innocent spouse entitles him or her to a divorce. Although fault divorces may be provable in a number of cases, there are many where the cause of the marital breakdown is not so clear-cut and cannot be entirely attributed to one party.
One of the most significant reforms of the Divorce Code is the availability of “no-fault” divorces, which are granted on one of two bases: mutual consent or one-year separation. There is no need to prove that the breakdown of the marriage was one spouse’s fault. If no fault grounds exist, the court will not sanction fault divorce litigation.
What Does “Separate and Apart” Mean?
To prove the date separation, the statute defines “separate and apart” as the “complete cessation of any and all cohabitation.” The Divorce Code makes it clear that parties may be living separate and apart due to marital difficulties, whether or not in the same residence.
How Do You Prove Separation from a Spouse While Living Together?
The easiest way to prove separation while the parties remain in the same residence is for one party to file for divorce and have service made on the other. Much in a divorce case depends on the date of final separation with a few exceptions. It is very important for your Family Lawyers to have precise information as to when you and your spouse were finally separated, particularly if in the same residence.
Equitable Distribution of Marital Property
What is Equitable Distribution?
With stated exceptions both codified in the Divorce Code and further fleshed out by our appellate courts, property acquired during the marriage by the parties, without regard to its title ownership, is known as “marital property” and is subject to “equitable distribution” upon the dissolution of the marriage.
The Code lists numerous categories of equitable factors, including length of marriage, contributions to a spouse’s education, contributions of a homemaker spouse, etc.
What is Considered Non-Marital Property?
An initial question in every case is what is “non-marital property” (or separate property) which is excluded from equitable distribution. There are specific areas of exclusion including property acquired before marriage or after separation. In addition, an inheritance acquired during the marriage is excluded, but its increase in value during the marriage to the time of final separation is included. Likewise a pre-marital asset may have a marital component if these assets grew in value, such that the growth will be the marital value. A decline in value of a non-marital asset may offset the growth of other non-marital asset values.
Generally, marital property is identified as of the date of the final separation between the parties. However, the dates for valuing marital property may vary and broad discretion is given to the court in determining what valuation date to use for each item of marital property. As an illustration, stock owned as of the date of final separation may be valued as of that date or as of the date of the final hearing or as of the date it is sold. Additionally, recent Code amendments addressed the marital value of retirement assets. The analysis of what part of the retirement is considered marital can be complicated, so the issue relating to these assets should be discussed with your attorney in detail.
Can I get Marital Property Appraised?
High Swartz Family Lawyers extensively with a variety of appraisers. It may be necessary to engage more than one appraiser in your case. As an example, one appraiser might be used to value the marital home; one might value retirement assets; another for the personal property in the home; and still another for the closely-held business interest owned by you or your spouse.
Every case will be handled on its own unique facts and it may be difficult for your family attorney to predict how the master or judge will equitably divide the marital property in your case. Without doubt, the law and the judiciary encourage negotiation and settlement after there has been a complete financial disclosure on both sides.
What is Bifurcation?
It may be possible to dissolve the marriage and defer resolution of the economic issues in your case. This process, known as bifurcation, separates the termination of the marriage from the resolution of economic claims. A spouse (who is otherwise divorce eligible) may file a petition with the court requesting that the divorce decree be entered even though economic claims remain unresolved.
What are the advantages and disadvantages of bifurcation?
In the Commonwealth of Pennsylvania, one is still considered married until the a divorce decree issues. The court may order bifurcation only when it determines that the advantages to such an action outweigh the disadvantages. One advantage often cited is that bifurcation allows the parties to begin restructuring their lives. An often cited disadvantage is that there may be a significant delay in the determination of economic claims. High Swartz Family attorneys would discuss the advantages and disadvantages of bifurcation with you in greater detail if this becomes an issue in your case.
What if my spouse dies?
If grounds for divorce are established and one party dies, even without a bifurcated divorce, the case will continue. For this reason it is very important that you review your will, power of attorney and medical directives as soon as a divorce action has started. It is very important that you sign updated documents when the relationship with your spouse has been affected by the divorce. High Swartz has a dedicated group of estate, wills, and trusts attorneys that often work directly with our family lawyers on the assets of our clients.
Post-divorce alimony is available in Pennsylvania, allowing a court to award alimony to a former dependent spouse in appropriate circumstances. This involves determining the amount of alimony and the time period over which payments are to be made. In some cases, alimony can be for an indefinite term.
What determines who gets alimony?
The Divorce Code states that all relevant factors are to be considered by the court in determining both the amount and the time period, and the Code specifically sets forth numerous non-exclusive criteria such as the parties’ respective assets, earnings, health, standard of living, education and needs, the length of the marriage and the contributions of a spouse as a homemaker. Further, the marital misconduct of a party prior to the date of final separation may also be considered.
Can Alimony be changed, modified or terminated?
Alimony is terminable upon the death, remarriage or cohabitation of the alimony recipient. Where circumstances change substantially, it is possible that an alimony award may be modified by a subsequent court order. In many cases a negotiated alimony arrangement will be a contractual commitment providing predictability but often no modification. The benefit of knowing the alimony commitment is greater than the risk of seeking modification later.
Child Custody, Partial Custody, and Visitation Rights
Even if you and your spouse cannot communicate, we always urge our clients to be considerate of the welfare of the children. They are often the innocent victims of the marital case you have with your spouse. It is always best for the parties to work out their custodial arrangements on an amicable basis, sometimes with the help of a qualified professional.
In partial custody matters, it is sometimes difficult to follow a specific schedule and we prefer that our clients maintain a degree of flexibility whether they are the primary, partial or shared custodial parents.
Under certain circumstances, grandparents may be able to establish their own right to spend time with the children; the primary concern is the best interests of the children. Statutory and case law regarding grandparents’ rights has expanded, providing grandparents an ability to foster their relationships with their grandchildren by seeking partial custody from the courts.
What is Shared Custody?
Essentially, shared custody embodies two principles: physical custody (physical control over the residence with the child) and legal custody (power to make decisions concerning the child’s education, medical care, religious training, etc.). A shared custodial arrangement may combine these two notions of physical and legal custody in an almost infinite variety of ways.
Does Shared Custody mean 50/50?
Shared physical custody does not necessarily mean that each parent will get “equal time” with the child; even in a shared custody arrangement, the child may spend a major part of a given year residing with one parent.
For most of our clients, the welfare of their children is paramount, and we realize that this is an area of great sensitivity. High Swartz Divorce Lawyers encourage the parties to seek professional help in dealing with problems concerning their children.
What is Family Mediation?
If a case goes to litigation, the Courts mandate that the parties meet with a mediator to determine if they can settle this case without going to a judge. We will guide you during that process. Each party should encourage the love and affection of the children for the other parent.
Spousal Support or Alimony Pendente Lite
If spouses are separated, there may be an obligation for one spouse to contribute to the support of the other spouse. This comes about by the filing of a petition or complaint for spousal support or for alimony pendente lite (i.e. interim support pending the litigation). There are significant procedural and tactical differences between the two kinds of support but in substance, they are designed to accomplish the same purpose – to put the parties on equitable economic footing during the pendency of the divorce proceedings.
What determines the amount of spousal support?
The amount of the support can be agreed upon voluntarily, with or without a written agreement setting forth the amount. However, we urge you to consult with a divorce lawyer prior to agreeing to accept or pay a specific amount of support. If direct negotiations between you and your spouse are not fruitful or appropriate, they may conduct negotiations with your spouse’s attorney on your behalf.
What if the spousal support cannot be agreed upon?
If the level of interim support cannot be agreed upon through negotiation, the dependent spouse may file a complaint or petition requesting that the court determine the amount. The court procedures vary from county to county and may include an initial conference, a hearing before a master and/or a trial before a judge. In making its determination, the court will generally consider the incomes and unusual expenses of both you and your spouse. In cases of spousal support (as contrasted to alimony pendente lite), marital fault may be considered. To further aid the court in making its determination, there are support guidelines which set forth the recommended spousal support amounts. The court’s decision will be entered in the form of an order.
How do you pay spousal support in PA?
The payor-spouse will then be obligated to make the support payments through the Pennsylvania State Collections and Disbursements Unit (PA SCDU) in Harrisburg which will forward payments to the recipient-spouse. More times than not, the payor-spouse will have his or her wages attached for the amount of the support order. The payor-spouse’s employer is responsible for garnishing the wages and send them to PA SCDU, which will then route the funds to the recipient-spouse. The support recipient may complete a form so payments are electronically deposited to the recipient’s account. A support order may be modified at a later date upon a showing of changed circumstances of a material and substantial nature.
In Pennsylvania, both parents are obligated to support their children in accordance with their respective abilities. The obligation to support one’s child continues until the child is emancipated, which is presumed to take place at age 18 or when a child graduates from high school, unless certain conditions exist at that time.
How is child support determined?
It is possible to agree on an amount for child support simply by discussing the matter with your spouse. However, we strongly suggest that you consult with a family lawyer prior to agreeing to any specific amount. If an agreement cannot be reached by negotiation, the procedure to obtain child support will follow much the same course as that used to obtain support for a spouse. In making its determination, the court will consider among other factors the income of both parents and the special needs of the child. To further aid the court in making its determination, there are statutory child support guidelines which set forth recommended support amounts.
How do you pay child support in PA?
As with support for a spouse, the court’s decision will be entered in the form of an order. The payor-parent will then be obligated to make child support payments through the Pennsylvania State Collections and Disbursement Unit or a wage attachment will issue. Then the support payments will be forwarded to the recipient-parent. A child support order may be modified at a later date upon a showing of changed circumstances of a material and substantial nature.
Changing Locks on Marital Residence
Can I change the locks on our house if we are separated?
When one spouse leaves the joint marital residence, a common question is whether the remaining spouse may change the locks for the purpose of excluding the spouse who left. Prior to the 1980 Divorce Code, under common law partition, it was clear that during the marriage neither spouse should exclude the other from the use and enjoyment of jointly-owned property, including real estate, bank accounts, etc. Without a pending divorce, such exclusion on the part of one spouse could entitle the excluded spouse to sell and divide equally all jointly-owned property. In the case of jointly-owned real estate (e.g. the marital residence), partition would lead to a sale of the real estate and an equal division of proceeds. For this reason, changing locks and excluding the other spouse was not advised.
If divorce and equitable distribution, (or Protection from Abuse), proceedings are pending at the time of the wrongful exclusion from the joint residence, partition will not be available to the excluded spouse. Instead, the joint residence will be treated as marital property and subject to equitable distribution. Because of the potential results which could occur following the changing of the locks on the joint marital residence, clients are cautioned against excluding the other spouse except in the case of physical harm or threat thereof, and then only pursuant to court order under the Protection from Abuse Act. Once a divorce action is filed and served, exclusion of one party may result in a court order allowing access but not a partition. Generally, when the divorce is pending and one party moves out, the occupying spouse changes the locks but gives the other spouse access on a reasonable basis.
Misappropriation of Joint Property
Can I spend joint savings after separation?
After a separation, it is the common practice of some parties to withdraw all monies in the joint checking or savings account or to take jointly-owed securities or other joint assets. When divorce and equitable distribution proceedings are pending at the time of the misappropriation of joint property, this may result in swift court response and possibly criticism of the party exercising self help. It may be less offensive to the Court if half of the liquid assets are secured.
In any event, you should communicate with a divorce lawyer before making use of any joint funds, joint securities or other joint assets.
Spousal Abuse or Child Abuse
Pennsylvania has adopted the Protection from Abuse Act to protect spouses and children from physical abuse. In some cases, the provisions of the Act have been “abused” by lawyers and/or their clients who have falsely alleged physical abuse in an effort to exclude a spouse from a marital home without justification.
If a situation exists involving abuse or threats of abuse to you or your children, do not hesitate to inform a family lawyer who can discuss with you the requirements for filing a petition seeking appropriate relief. Part of that relief is the discretionary right of a court to exclude the abusing spouse from the marital residence for a period of up to two years, and removing any weapons from the home.
THE RELATIONSHIP WITH YOUR SPOUSE
Use of Credit Cards/Credit Report
Can I or my spouse use our joint credit cards?
Following the breakdown of a marriage, numerous problems arise with respect to credit and the use of credit cards. Your divorce lawyer should do everything possible to give you appropriate advice on such matters. If you are the spouse seeking support, your demands for support should not be extravagant. They should be consistent with the lifestyle you enjoyed prior to the breakdown of the marriage.
If you are the spouse paying support, you should likewise be fair to your family and not try to “squeeze” in order to secure a better bargaining position. It is always prudent to order your personal credit report as soon as it becomes obvious a divorce is possible. Send the report to your lawyer and bring to the lawyer’s attention any surprises. All valid liabilities should be included on your Inventory of Assets and Liabilities.
Can I date after being separated from my spouse?
One of the most frequently asked questions is whether a client may date after separation. Marital misconduct prior to final separation if proven will result in the denial of spousal support.
What if both spouses cheated during the marriage?
When both spouses are guilty of marital misconduct, generally the court only focuses on the party seeking alimony. Marital misconduct is not a consideration if a dependent spouse asks for alimony pendente lite, (“APL”). Unlike spousal support, alimony pendente lite is granted to enable the dependent spouse to maintain or defend the divorce action without being placed in a financially disadvantageous position. The amount of alimony pendente lite is the same as a spouse support award. The recipient, however, may be required to sign a Consent to the divorce to avoid termination of alimony pendente lite while the divorce is pending.
With respect to alimony, marital misconduct prior to the final separation is one of several factors which may affect alimony rights. Marital misconduct of either party which occurs after final separation will not be considered by the court in making its alimony determination.
When can alimony be terminated in PA?
A spouse’s court-ordered obligation to pay alimony to his/her former spouse will be terminated under the Divorce Code if the recipient enters into cohabitation with a person of the opposite sex, remarries or dies. Sometimes an agreement is reached to pay alimony notwithstanding cohabitation or remarriage.
What happens if my spouse and I have decided to stay married?
Reconciliation efforts are always encouraged by divorce lawyers and courts. Very often, marriages break down and after reconciliation efforts the marriage relationship is restored and grows stronger in the years ahead. Sometimes, professional counseling may be helpful to work out the problems of a deteriorated marriage. If you believe that your marriage is worth saving, we encourage you to take every step to keep it together. If you have resolved, however, that there is no hope of reconciliation, we certainly are willing to accept your decision and will be guided accordingly.
Marital Counseling Under the Divorce Code
Do we need to go to Marital counseling?
One of the features of the Divorce Code is the provision on counseling. When a divorce is filed on the grounds of indignities or mutual consent, the courts may require, upon the request of either party or of their own volition, counseling.
Parties who believe that professional advice may help them solve their marital problems or cope with the divorce, have the opportunity to request that the court order counseling. The counseling will have a limited impact on the divorce litigation as the counselor need only report to the court whether the parties attend the sessions in the required time period, and is not permitted to report to the court the substance of the discussions at the counseling sessions.
With certain exceptions, both signers of a joint federal income tax return are responsible individually and jointly for the entire tax liability. The fact that one party or the other may have earned the income does not change this result. Furthermore, a private agreement between spouses that one spouse or the other is to pay the federal income tax liability is not binding on the Internal Revenue Service, and the Internal Revenue Service may look to either spouse or both for full payment of the taxes due. An Indemnification Agreement may be recommended to you by your attorney in order to achieve some protection for the non-income spouse.
The federal income tax has different filing statuses for individuals: single, married filing jointly, married filing separately, head of household, and surviving spouse. For a given amount of taxable income, the filing status of a married person filing a separate return will result in the highest tax liability. This does not necessarily mean that the filing status of married filing separately is to be avoided at all costs. Under certain circumstances, it may be necessary or even desirable. A custodial parent may qualify for head of household status. Notably, prior to the divorce decree, there is no decree of legal separation, so do not heed the suggestions a separated spouse cannot qualify for single status.
Are spousal support payments, alimony or APL considered taxable income?
As a general rule, spousal support payments, alimony pendente lite or alimony payments under a written agreement or court order will be taxable income to the recipient. The paying spouse will, with certain exceptions, be able to deduct such payments on his or her tax return. To avoid penalties for underpayments of tax, the recipient spouse should make quarterly payments of estimated tax to the Internal Revenue Service.
Is transfer of property from a divorce taxable?
Generally speaking, the transfer of property between the parties to a divorce is not a taxable transaction. However, with limited exceptions, on the eventual sale of transferred property, the recipient will be taxed on the difference between the cost basis and the net proceeds of the sale. Because the cost basis of the property may be significantly less than its fair market value at the time of the divorce, there may be a hidden tax which will have to be paid when the property is sold. For this and other reasons, the amount that each spouse receives and gives up should generally consider the inevitable tax consequences.
If you are unsure as to the tax consequences of any aspect of your case, you should not hesitate to seek our opinion or that of your own accountant or tax advisor.
Discussions With Your Spouse/Mediation
Should you and your spouse seek out a mediation?
Clients often ask whether they can or should discuss settlement proposals with their spouses. If a client has a firm grasp of his or her financial status, needs and property and is capable of objectively discussing the settlement as a prudent business person, then such discussions are to be encouraged.
However, before embarking upon such discussions, you should talk with to a lawyer to ascertain your “bargaining strength.” Furthermore, before any final understanding is reached with your spouse, you should seek confirmation that the proposed agreement is consistent with your legal rights and duties. Many parties choose to jointly hire a mediator so the parties can meet face to face with the mediator to discuss their issues. Let your lawyer help you select the mediator so the person chosen has the range of skills needed for the case. Your attorney will assist you in preparing for the mediation sessions.
A fair mediator will encourage parties to talk to their lawyers before terms are resolved. In the end, a final agreement is not reached until the mediation understanding results in a signed settlement. Whether or not you seek the advice of a mediator, Sign nothing until you confer with your lawyer.
Unfortunately, our experience suggests that many spouses are incapable (understandably) of conducting objective negotiations between themselves. If the parties are not on equal footing, private negotiation or mediation will not lead to a fair result. Do not be intimidated by any threats on the part of your spouse if you cannot agree to his or her terms.
Does My Spouse Need a Lawyer?
Even in the simplest of cases in which there are no disputes, each spouse should have independent legal advice as to any proposed legal agreement or settlement. In some cases, one party is very confident and will negotiate on his/her own behalf. Usually that person brings a proposed agreement to a lawyer for review before signing. This is prudent for the protection of both parties.