Q. I want a divorce from my spouse. Should I leave the home?
A. Generally speaking, the answer is no, unless you have a specific financial strategy in place. Leaving a home may also set a status quo for custody and exclusive possession of the home. As such, it is important to consult with an attorney before making any move to leave the home.
Q. How long does it take to get a divorce?
A. In Pennsylvania, the earliest a divorce decree can be requested is 90 days from the date a complaint in divorce was served to the other individual. This is assuming both persons involved have reached an agreement as to the terms of the divorce during those 90 days. Otherwise, there is a two-year waiting period to request a court appearance regarding the divorce case if the other spouse won’t consent to the divorce. However, negotiations often occur during that two-year waiting period, and many cases do settle during that timeframe.
Q. Does it matter who files for the divorce?
A. Usually not. Pennsylvania is a no-fault divorce state, and as such, it usually does not matter who the plaintiff is or the defendant. However, there can be an overlap as to whether an individual is entitled to spousal support if a complaint has not been filed, or whether a divorce case can be pushed through the system sooner. You should consult with an attorney regarding these matters to develop an effective strategy for the divorce.
Q. Do I have to prove fault to get a divorce?
A. No. Pennsylvania is a no-fault divorce state, and as such, a court can grant a divorce without establishing fault by either party. However, if there is a fault, and if that fault is proven, it can be a factor for the court to consider. You should consult with your attorney regarding fault grounds, including infidelity, to determine how it can affect your case.
Q. How do I prepare for a divorce?
A. Divorce in Pennsylvania involves the equitable distribution of all marital assets and liabilities. As such, to prepare for a divorce, you should collect any and all financial documents regarding your income, assets and debts to provide to your attorney. Your attorney will then assist you with reaching a proposal to send to the opposing side for settlement of your divorce case.
Q. How is property divided in a divorce?
A. The court applies 13 factors in equitably dividing the marital assets and debts in a divorce case. These factors, which can be viewed here, also can be used in negotiating settlement of the divorce case. You should consult with an attorney to determine which factors apply to your particular case and how they can affect the outcome.
Q. What if my spouse doesn’t want a divorce?
A. Pennsylvania is a no-fault state, so only one party must convince the court that there are irreconcilable differences and that there is no chance of a reconciliation. As such, one party can eventually force another party to proceed with the divorce.
Q. I had an affair. What is the impact of that affair on my divorce?
A. While Pennsylvania is a no-fault divorce state, infidelity may have an impact if it can be proven. You should consult with an attorney regarding the impact of an affair on your divorce and support cases.
Q. Do I have to live separately from my spouse in order to get a divorce?
A. Not necessarily. Some persons elect to live together during the pendency of the divorce action. And some even reach an agreement as to the settlement of the divorce action while living together, and set a specific date in the future for when the other spouse will vacate the residence. There is no requirement that the parties must live separately in order for a divorce decree to be entered. However, a date of separation can be important for establishing the values of assets and debts in a marriage. You should consult with an attorney regarding how to determine a date of separation, and how that date affects your divorce matter.
Q. What if one parent is not abiding by the custody order?
A. If there is an order in place regarding the custody of your children, and the other parent is not abiding by that order, you can present a petition for contempt of the court order and ask the court to hold that parent in contempt, or request compliance/enforcement of that court order. You should consult with an attorney regarding the provisions of the court order and whether it is beneficial to seek court intervention.
Q. What if the other parent is not allowing me to see my children?
A. Assuming there is no court order in place, and the other parent is withholding custody, you should consider filing a custody complaint and proceeding through the custody process. Sometimes, it is beneficial to also present a motion to the court asking for an interim custody arrangement as you proceed through the custody process. You should consult with an attorney regarding your options, especially if there is an emergency situation.
Q. I want to move with my children out of the state, can I do this?
A. Pennsylvania law requires that the other parent consents to the move, or that a court order permits the move. You should consult with an attorney regarding the required steps to receive court permission for the move prior to doing so.
Q. At what age can my child decide who he/she wants to live with?
A. Under Pennsylvania law, a child’s well-reasoned preference is only one of the 17 factors a court considers in making a custody determination. You should consult with an attorney regarding the custody factors and how a child’s preference may impact your case.
Q. How many times can a custody order be modified?
A. The court does not employ a standard or set a specific number of times that a custody order can be modified before a child reaches the age of emancipation. However, you should consult with an attorney regarding the frequency of modifications and how that can impact your case.
Q. What is the difference between legal and physical custody?
A. Legal custody is the ability to make any and all religious, medical and educational decisions for your children. This responsibility may be shared by the parties, or only one parent may have this right.
Physical custody is the amount of time the child is in the physical custody and control of each parent. This is usually determined by where the children spend the night, and with which parent, as well as how often the children are physically with a particular parent.
Q. How is child support calculated?
A. You can go to the Pennsylvania Child Support website to get an estimation of the child support obligation. However, much more goes into a calculation than what is provided in the estimate. The calculator also does not provide an estimation for spousal support. You should consult with an attorney to obtain a more comprehensive calculation that includes spousal support.
Q. How long do I have to pay child support?
A. Under Pennsylvania law, child support must be paid until the child reaches the age of 18 or graduates from high school, whichever date is later. However, if the child has physical or emotional challenges, a parent may be ordered to continue paying support.
Q. If I lose my job, will my child support obligation automatically terminate?
A. No. If you are fired or are laid off from your job, you should consult with an attorney regarding requesting a modification of the support obligation. An attorney can also advise you as to potential earning capacity arguments that the opposing side may make.
Q. What do I do if the other party is not paying the support obligation?
A. If there is a support order in place and the paying party is not paying support, a contempt action may be commenced by the party receiving support or by the Domestic Relations Office.
Q. I receive bonuses and overtime. Will that be included in my income for calculating support?
A. Usually yes. Even though bonuses and overtime are not guaranteed, the court may assume that you will continue to receive them until you prove that they are no longer available to you, or that you are no longer regularly receiving them.
Legal disclaimer: The information provided in these FAQs is for general informational purposes only and is not intended as a substitute for personal legal advice. The law changes frequently and varies from jurisdiction to jurisdiction. Further, legal advice cannot be given without full consideration of all relevant information relating to an individual’s specific situation. No attorney-client relationship is formed, nor should any such relationship be implied.