Divorce Practice Areas
Always Seek Divorce Guidance from an Experienced Lawyer
As Bucks County and Montgomery County family lawyers, filing for divorce is tough. Our divorce lawyers drafted this section offering guidance based on our experience. We offer three sections to help you through the process:
- Pennsylvania Divorce Law as it pertains to you and your situation
- Your relationship with your spouse
- Your relationship with your family or divorce lawyer.
Pertinent questions are answered within each section to make big concepts understandable.
After reading this divorce guide, we hope you are more informed of the immediate concerns. In addition, we hope you grasp how to manage the relationship with your spouse. Lastly, we hope it supports helping you make a huge decision - whether to proceed and talk with divorce lawyers near you. That last part reflects your most critical decision throughout your journey.
Please remember that Pennsylvania's divorce law remains in constant flux. So this information should not replace a family law attorney's advice or guidance. And if you're looking for divorce lawyers near you in Bucks County, PA, or Montgomery County, PA, call us.
Divorce Guidance Table of Contents
- Pennsylvania Divorce Law – a general overview
- Grounds for Divorce
- Equitable Distribution of Marital Property
- Bifurcation/Estate Consideration
- Custody/Partial Custody/Visitation
- Shared Custody
- Spousal Support or Alimony Pendente Lite
- Child Support
- Changing Locks on Marital Residence
- Misappropriation of Joint Property
- Spouse or Child Abuse
- Use of Credit Cards/Credit Report
- Dating/Marital Misconduct
- Counseling Under the Divorce Code
- Tax Matters
- Discussions With Your Spouse/Mediation
- Does My Spouse Need a Lawyer?
PENNSYLVANIA DIVORCE LAWS
We can't possibly offer enough divorce guidance in this space relating to PA Divorce Law. But our divorce lawyers wanted to cover some core insights that may prove beneficial. So, let's get started.
Before July 1980, Pennsylvania was unique because it was the only state in the country that retained a fault system of divorce. It carried no 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, with some amendments since its release. We cover those amendments in this summary.
PA divorce law retains most of the traditional fault grounds for divorce. However, it added two grounds of the "no-fault" variety.
Under the "mutual consent" no-fault ground, you may obtain a divorce after a ninety-day waiting period following the service of the divorce. Both parties must consent in writing.
Under the "unilateral" no-fault ground, you acquire a divorce upon the request of either party. That law applies when the parties have been separated for two years providing the final separation relates to marriage difficulties. If the parties dispute the date of separation, the court determines at what point there was public awareness of the 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." In addition, it provides for equitable property distribution (assets and liabilities) acquired by either or both parties during the marriage, with certain exceptions. Connect with a local divorce lawyer who understands Pennsylvania divorce laws.
Grounds for Divorce
Pennsylvania is one of 32 states offering both fault and no-fault divorces. Here's a closer look at each.
Under the prior divorce law, it grants divorces on fault grounds. Those grounds require that one spouse demonstrate that they are relatively blameless. Also, it requires that the "fault" committed by the other spouse (typically indignities, but also adultery, desertion, cruel treatment, etc.) against the innocent spouse entitles them to divorce. Although fault divorces may be provable in many cases, the reasons for the marital breakdown remain unclear, with no single party at fault.
One of the most significant reforms of the Divorce Code is the availability of "no-fault" divorces. The Code grants divorce on one of two bases: mutual consent or one-year separation. The law requires no proof that the marriage breakdown was one spouse's fault. The court will not sanction fault divorce litigation if no fault grounds exist.
What Does "Separate and Apart" Mean?
The statute defines "separate and apart" as the "complete cessation of any cohabitation." The Divorce Code clarifies that parties may live separately and apart due to marital difficulties, whether or not in the same residence. A divorce lawyer can determine if you meet this requirement.
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 to the other. As a result, divorce cases emphasize the date of final separation, with a few exceptions. So your family law attorney must have precise information about when you and your spouse were finally separated, mainly if they are in the same residence.
Equitable Distribution of Marital Property
What is Equitable Distribution?
With stated exceptions, 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, becomes "marital property." As such, that property is subject to "equitable distribution" upon the dissolution of the marriage.
The Code lists numerous categories of equitable factors, including length of the 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 the "non-marital property" (or separate property) excluded from equitable distribution. There are specific areas of exclusion, including property acquired before marriage or after separation. In addition, the Code excludes inheritance received during the marriage. 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 grow in value, such that the growth will be the marital value. A decline in the value of a non-marital asset may offset the increase of other non-marital asset values.
Generally, the law defines marital property as the final separation date between the parties. However, the dates for valuing marital property may vary, and the courts apply broad discretion 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 gets valued in three ways:
- Based on the date of the final separation
- The date of the final hearing
- As of the selling date of the property
Additionally, recent Code amendments address the marital value of retirement assets. However, analyzing what part of retirement is considered marital can be complicated. So you should discuss any issues with these marital assets with a Bucks County or Montgomery County divorce lawyer in detail.
Can I get Marital Property Appraised?
High Swartz local divorce lawyers work extensively with a variety of appraisers. However, engaging more than one appraiser in your case may be necessary. For example, one appraiser might value the marital home. Next, another might value retirement assets. Then, another for the personal property in the house. And finally, one for the closely-held business interest you or your spouse owned.
Courts address each case based on its unique facts. So it may be difficult for your divorce attorney to predict how the master or judge will equitably divide the marital property in your case. But, without a doubt, the law encourages negotiation and settlement after complete financial disclosure by both sides.
Bifurcation/Estate Consideration Divorce Guidance
What is Bifurcation?
In your case, it may be possible to dissolve the marriage and defer the resolution of the economic issues. This process, known as bifurcation, separates the termination of the marriage from the resolution of monetary claims. A spouse (otherwise divorce eligible) may file a petition with the court requesting entry of the divorce decree even though economic claims remain unresolved.
What are the advantages and disadvantages of bifurcation from a divorce guidance standpoint?
One is still considered married in the Commonwealth of Pennsylvania until the divorce decree. The court may order bifurcation only when it determines that the advantages of such action outweigh the disadvantages. One benefit often cited is that bifurcation allows the parties to restructure their lives. On the contrary, an often-cited disadvantage is that there may be a significant delay in determining economic claims. Our Bucks County and Montgomery County family lawyers will 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 continues. For this reason, you must review your will, power of attorney, and living will as soon as a divorce action begins. In addition, you must sign updated documents when the relationship with your spouse has been affected by the divorce. Our local family law firm has a dedicated group of estate, wills, and trusts attorneys that work directly with our nearby divorce lawyers on our client's assets.
Alimony Divorce Guidance
Pennsylvania permits post-divorce alimony. Sometimes, a court can award alimony to a former dependent spouse. The award also involves determining the amount of alimony and the timing of payments. In some cases, alimony can be for an indefinite term.
What determines who gets alimony?
The Divorce Code states that the court considers all relevant factors when determining the amount and time. Plus, the Code sets explicitly forth numerous non-exclusive criteria, including:
- The parties' respective assets
- Standard of living
- Length of the marriage
- Contributions of a spouse as a homemaker.
Further, courts may consider the marital misconduct of a party before the date of final separation. A divorce lawyer can fill you in the Code to clarify alimony concerns.
Can alimony be changed, modified, or terminated?
Alimony is terminable upon the alimony recipient's death, remarriage, or cohabitation. In addition, where circumstances change substantially, courts may modify an alimony award with a subsequent court order. A negotiated alimony arrangement involves a contractual commitment providing predictability but often no modification in many cases. Consequently, the benefit of knowing the alimony commitment outweighs the risk of seeking change later.
Custody, Partial Custody, and Visitation Rights
Even if you and your spouse cannot communicate, here's some critical divorce guidance -- always consider the welfare of their children. Often, they represent innocent victims of your divorce case with your spouse. It is always best for the parties to work out custodial arrangements on an amicable basis, sometimes with the help of qualified professionals. The custody lawyers in our Montgomery County and Bucks County law offices have the experience to deliver the best outcome.
It is sometimes difficult to follow a specific schedule in partial custody matters. So we prefer our clients to maintain flexibility whether they are the primary, partial, or shared custodial parents.
Under certain circumstances, grandparents may establish their right to spend time with the children. After all, the primary concern is the best interests of the children. In addition, statutory and case law regarding grandparents' rights has expanded. Now it allows grandparents 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 combines these notions of physical and legal custody in an 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 much of a year residing with one parent.
For most of our clients, the welfare of their children is paramount. However, we realize this is an area of great sensitivity, so our family law attorneys 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 it without going to a judge. Our Bucks County and Montgomery County family lawyers 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 separated, one spouse may be obligated to support the other spouse. For example, this declaration results from filing a petition or complaint about spousal support or alimony pendente lite (i.e., interim support pending the litigation). Significant procedural and tactical differences are present between the two kinds of support. However, 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?
If the parties agree, they can establish the amount of support with or without a written agreement. However, we urge you to consult with a divorce lawyer before agreeing to accept or pay a specific amount of support. If direct negotiations between you and your spouse falter, they may conduct negotiations with your spouse's family lawyer on your behalf—some more divorce guidance to consider.
What if we can't agree on spousal support?
If the parties can't agree on the interim support level 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. But they may include an initial conference, a hearing before a master, or a trial before a judge. In making its determination, the court considers the incomes and unusual expenses of both you and your spouse.
In addition, the court may consider fault in cases with spousal support (as contrasted to alimony pendente lite). Support guidelines set forth the recommended spousal support amounts to further aid the court in making its determination. Finally, the court enters its decision in the form of an order. Under these circumstances, work closely with your divorce lawyer for guidance.
How do you pay spousal support in PA?
The payor spouse must make the support payments through the Pennsylvania State Collections and Disbursements Unit (PA SCDU) in Harrisburg, PA. It forwards payments to the recipient's spouse. More times than not, the payor spouse has their wages attached to the support order amount. The payor spouse's employer garnishes the wages and sends them to PA SCDU. In turn, it routes the funds to the recipient's spouse. The support recipient may complete a form so payments for electronic deposit to the recipient's account. Courts may modify a support order later, showing changed circumstances of a material and substantial nature.
Child Support Divorce Guidance
In Pennsylvania, both parents must support their children per their respective abilities. That obligation extends until the child's emancipation, at age 18, or when a child graduates from high school unless certain conditions exist.
How is child support determined?
It is possible to agree on child support simply by discussing it with your spouse. However, as another piece of divorce guidance, we strongly suggest you consult with a family lawyer before deciding on any specific amount as a matter of divorce guidance. If negotiation fails to reach an agreement, obtaining child support follows much the same course as getting support for a spouse. When determining, the court considers the parent's income and the child's unique needs, among other factors. In addition, statutory child support guidelines determine recommended support amounts.
How do you pay child support in PA?
As with support for a spouse, the court enters its decision in the form of an order. Consequently, the payor-parent is obligated to make child support payments through the Pennsylvania State Collections and Disbursement Unit (SCDU) or a wage attachment issues. Then the SCDU forwards the support payments to the recipient-parent. In addition, courts may modify child support later upon showing changed circumstances of a material and substantial nature.
Divorce Guidance on 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 to exclude the spouse who left.
Before the 1980 Divorce Code, under common law partition, during the marriage, neither spouse should exclude the other from the use and enjoyment of jointly-owned property, including real estate, bank accounts, etc. However, without a pending divorce, such exclusion of one spouse entitles the excluded spouse to sell and divide all jointly-owned property equally.
As a result, in the case of jointly-owned real estate (e.g., the marital residence), partition could prompt a sale of the real estate and an equal division of proceeds. For this reason, our divorce lawyers steer our clients away from changing locks and excluding the other spouse.
Suppose divorce and equitable distribution (or Protection from Abuse) proceedings are pending at the time of the wrongful exclusion from the joint residence. In that case, the partition will not be available to the excluded spouse. Instead, the residence is treated as marital property and subject to equitable distribution. Because of possible results following changing locks, our divorce attorneys urge their clients against excluding the other spouse.
That divorce guidance applies except for physical harm or threat and only under a court order under the Protection from Abuse Act. Once a divorce action is filed and served, the exclusion of one party may result in a court order allowing access but not a partition. Generally, with a pending divorce where one party moves out, the occupying spouse changes the locks but reasonably gives the other spouse access.
Misappropriation of Joint Property
Can I spend joint savings after separation?
After separation, some parties withdraw all monies in the joint checking or savings account. In addition, they take jointly-owed securities or other joint assets. However, courts often react quickly to stem those efforts when divorce and equitable distribution proceedings are pending. Typically, courts remain neutral if half of the liquid assets are secured.
Communicating with a divorce lawyer before using joint funds, joint securities, or other joint assets would be best.
Divorce Guidance on Spousal Abuse or Child Abuse
Pennsylvania adopted the Protection from Abuse Act to protect spouses and children from physical abuse. Unfortunately, in some cases, the Act's provisions have been "abused" by attorneys, lawyers, and their clients who falsely allege physical abuse to exclude a spouse from a marital home without justification.
You should inform your divorce lawyer if a situation exists involving abuse or threats to you or your children. Our Norristown and Doylestown divorce lawyers will discuss the requirements for filing a petition seeking appropriate relief. As part of that relief, the court has the discretionary right to exclude the abusing spouse from the marital residence for up to two years. It can also mandate the removal of any weapons from the home.
Divorce Guidance on the Relationship with Your Spouse
Use of Credit Cards/Credit Report
Can my spouse or I use our joint credit cards?
Following the marriage breakdown, numerous problems arise concerning credit and using credit cards. Your divorce lawyer should do everything possible to give you appropriate divorce guidance. If you seek support, your demands should not be extravagant. Instead, they remain consistent with the lifestyle you enjoyed before the marriage breakdown.
On the other hand, if you are the spouse paying support, you should be fair to your family and not try to "squeeze" them to secure a better bargaining position. You should order your credit report as soon as it becomes evident a divorce is possible. Then send the report to your divorce lawyer and bring any surprise to their attention. Equally important, include all liabilities on your Inventory of Assets and Liabilities.
Dating/Marital Misconduct Divorce Guidance
Can I date after being separated from my spouse?
One of the most frequently asked questions is whether a client may date after separation. Suppose proven marital misconduct before final separation results in denying spousal support.
What if both spouses cheated during the marriage?
Generally, when both spouses are guilty of marital misconduct, the court only focuses on the party seeking alimony. Marital misconduct is not considered if a dependent spouse asks for alimony pendente lite ("APL"). Unlike spousal support, courts grant alimony pendente lite to enable the dependent spouse to maintain or defend the divorce action without being placed in a financially disadvantageous position. The alimony pendente lite is the same as a spousal support award. The recipient may be required to sign a consent to the divorce to avoid termination of alimony pendente lite as the divorce pends.
For alimony, courts factor marital misconduct before final separation into alimony rights. However, courts negate any marital misconduct by either party after final separation when determining its alimony.
When can alimony be terminated in PA?
A spouse's court-ordered obligation to pay alimony to their former spouse terminates under the Divorce Code if the recipient cohabitates with a person of the opposite sex, remarries, or dies. However, sometimes an agreement happens agreeing to alimony payment notwithstanding cohabitation or remarriage.
What happens if my spouse and I decide to stay married?
Courts and divorce lawyers encourage reconciliation efforts. Unfortunately, very often, marriages break down. However, after reconciliation efforts, the marriage relationship restores and grows more robust in the years ahead. Sometimes, professional counseling may help resolve the problems of a deteriorated marriage. But if you believe your marriage is worth saving, we encourage you to take every step to keep it together. Unfortunately, if you've determined no hope of reconciliation exists, our family law attorneys can help with appropriate divorce guidance.
Marital Counseling Under the Divorce Code
Do we need to go to Marital counseling?
One of the features of the Divorce Code is its provision of counseling. When filing a divorce on the grounds of indignities or mutual consent, the courts may require counseling upon the request of either party or their own volition.
Parties who believe that professional divorce guidance may help solve their marital problems or cope with the divorce can request that the court order counseling. But counseling owns a limited impact on divorce litigation. For instance, the counselor need only report to the court whether the parties attend the sessions in the required period. However, counselors may not report to the court the substance of the discussions at the sessions.
Divorce Guidance on Tax Matters
With certain exceptions, both signers of a joint federal income tax return hold responsibility individually and jointly for the entire tax liability. So the fact that one party or the other may have earned the income has no impact. Furthermore, a private agreement between spouses that one spouse is to pay the federal income tax liability is not binding on the Internal Revenue Service.
As a result, the Internal Revenue Service may look to either spouse or both for full payment of the taxes. Divorce lawyers may recommend an Indemnification Agreement 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. As a result, for a given amount of taxable income, the filing status of a married person filing a separate return results in the highest tax liability.
But don't shy away from the filing status of married filing separately. Under certain circumstances, for example, it may be necessary or even desirable.
A custodial parent may qualify for head of household status in other circumstances. Notably, there is no decree of legal separation before the divorce decree.
So do not heed the suggestion that a separated spouse cannot qualify for single status.
Are spousal support payments, alimony, or APL considered taxable income?
Generally, spousal support payments, alimony pendente lite, or alimony payments under a written agreement or court order represent taxable income to the recipient. As a result, the paying spouse can, with certain exceptions, deduct such payments on their tax return. However, to avoid penalties for tax underpayments, the recipient spouse should make quarterly estimated tax payments to the Internal Revenue Service.
Is the transfer of property from a divorce taxable?
Generally speaking, the property transfer between the parties to a divorce is not taxable. However, with limited exceptions, on the eventual sale of transferred property, the recipient pays taxes on the difference between the cost basis and the net proceeds of the sale. Because the cost basis of the parcel may be significantly less than its fair market value at the time of the divorce, you might encounter a hidden tax with the property's sale. Each spouse's amount and gives up should generally consider the inevitable tax consequences for this and other reasons.
If you are unsure about the tax consequences of your case, you should not hesitate to seek the opinion of a divorce lawyer, your accountant, or your tax advisor.
Discussions With Your Spouse/Mediation
Should you and your spouse seek out mediation?
Clients often ask whether they can discuss settlement proposals with their spouses. Our family lawyers encourage such discussions if clients have a firm grasp of their financial status, needs, and property and can objectively examine the settlement as a prudent business person.
However, before these discussions, you should talk with your divorce lawyer to ascertain your "bargaining strength." Furthermore, before reaching any final understanding with your spouse, you should seek confirmation that the proposed agreement is consistent with your legal rights and duties.
In addition, many parties choose to jointly hire a mediator so the parties can meet face-to-face with the mediator to discuss their issues. So let your divorce lawyer help you select the mediator to ensure the person chosen has the range of skills needed for the case. We can also assist you in preparing for the mediation sessions.
A fair mediator encourages parties to talk to their divorce lawyers before resolving terms. Ultimately, a mediator won't present a final agreement without the understanding that it results in a signed settlement. Whether or not you seek a mediator's advice, sign nothing until you confer with your divorce lawyer.
Unfortunately, our experience suggests that many spouses remain incapable (understandably) of conducting objective negotiations between themselves. But if the parties are not on equal footing, private negotiation or mediation will not generate a fair result. Regardless, heed this critical divorce guidance, and don't fall prey to intimidation or threats by your spouse if you cannot agree to their terms.
Does My Spouse Need a Divorce Lawyer?
In most straightforward cases with no disputes, each spouse should have independent legal guidance regarding any proposed legal agreement or settlement. However, one party is very confident in some cases and negotiates on their behalf. Usually, that person brings a proposed deal to a divorce lawyer for review before signing.
Need More Divorce Guidance?
This divorce guide cannot possibly cover every aspect of a divorce case. Instead, it seeks to give our clients general guidance and give available answers to frequently asked questions about divorce. Our family lawyers know that every case is unique. Remember, no two persons own the same set of fingerprints. Well, no divorce case is alike.