Divorce in Pennsylvania

What is Divorce in Pennsylvania

Divorce is the legal ending of a marriage by court order. In the Pennsylvania Divorce Court, it is frequently referred to as the "dissolution of marital status". The judgment for divorce in the state contains the parties' final agreement concerning child custody and parenting time schedules, alimony, and child support as well as asset/debt division. Most divorces in Pennsylvania are uncontested and are resolved via divorce mediation. However, if one spouse does not agree, or both parties involved fail to reach an agreement, a trial will be held before a judge.

Divorce in Pennsylvania may be complicated especially in contested cases. Learning about the Pennsylvania divorce laws and how it applies to specific situations is vital especially for those who wish to self-represent in court. Otherwise, seeking the advice of a state-licensed divorce attorney may be a useful alternative. Records of divorce proceedings are documented in Pennsylvania divorce records. These records are maintained and disseminated by the court clerks in the court houses were the divorce is declared.

Divorce Laws in Pennsylvania

Divorce in Pennsylvania is handled in accordance with the provisions of Pennsylvania divorce laws outlined in (23 Pa.C.S.A. §3301). To be prepared, intending divorcees in the state should understand the various unique aspects of the divorce law. These can include:

Grounds for Divorce: Pennsylvania is both a "fault" and "no-fault" divorce state. However, the more commonly practiced form is the no-fault divorce, where a couple agrees to get a divorce simply because their union is "irretrievably broken". A Pennsylvania divorce can be granted on this ground if:

Both parties mutually consent to the divorce and have lived apart for at least one year (23 Pa.C.S.A. §3301(c).
Only one spouse alleges that the marriage is broken beyond repair and has not shared a home with the unconsenting spouse in the last one year (23 Pa.C.S.A. §3301(d)
One spouse is insane or has a mental disorder and needs to be admitted and confined in a mental institution. To get a divorce on this ground, the "insane" spouse must have been in a mental institution for at least 18 months (23 Pa.C.S.A. §3301(b).

On the other hand, a fault divorce is granted when one spouse accuses the other spouse of a misconduct, hence the need for a divorce. The Pennsylvania Divorce Code requires the filing spouse to be "injured and innocent" and not perfect and loving. This simply means that one party is guilty of misconduct that falls under the six grounds for a fault divorce in Pennsylvania. For instance, a divorce based on adultery can be granted only if one spouse is guilty, and the "innocent and injured" spouse is faithful. Apart from adultery, other grounds for a fault divorce in Pennsylvania include:

Malicious and willful desertion: Abandonment for at least one year
Cruel and barbarous treatment: Occurs when one spouse treats the other poorly to the extent of health and safety endangerment
Bigamy: Occurs when one spouse has another valid marriage. To prove this in court, the erring spouse must be aware they were already married
Imprisonment: One spouse was convicted for a criminal offense and serving a jail time of more than one year
Indignities: Poor treatment making the other spouse's life unbearable. These can include mental and verbal abuses

Residential Requirements: To file for a divorce in Pennsylvania, one or both spouses must reside in the state for a minimum of six months (23 Pa.C.S.A. §3304).

Collaborative Divorce: The Pennsylvania Collaborative Divorce Act, signed in 2019 by Gov. Tom Wolf, allows divorcing couples to make mutually beneficial agreements without going to court. To get a collaborative divorce, both parties must have legal representation and all parties involved must sign an agreement committing to the process. Collaborative divorce is different from mediation, a process facilitated by a third-party mediator with no attorney present.

Common Law Marriage: Effective from January 1, 2005, common law marriages are no longer recognized in Pennsylvania (Pa.C.S.A. §1103). Couples in this form of union, made before 2005, can get a traditional divorce just like couples in formalized marriages. In addition, other rights such as alimony rights, child support rights, property rights, and custody rights are preserved.

Separation vs. Annulment vs. Divorce

Divorce, separation, and annulment are often used interchangeably to refer to the end of a marriage. However, they have striking differences and they are distinctly handled by the Pennsylvania Family Court.

In applicable states, legal separation is an alternative to divorce that allows conflicted couples to live apart and carry on their lives separately. When couples decide to separate, they make a common agreement stating how property will be divided, debts will be paid, and how children will be catered for. In the Pennsylvania Divorce Code, the term "legal separation" does not exist. Even then, a couple's actual separation date is an important determinant of divorce in the state. A couple cannot get a divorce without living apart for about 1 - 2 years, depending on the circumstances. Also, the separation date is important when valuing and identifying assets co-owned by the couple.

Pursuant to Section 3103 of the Pennsylvania Divorce Code, the legally recognized separation date is the date upon which they started living "separate and apart". The term separate and apart does not necessarily mean that both spouses are living in separate apartments but rather the cessation of cohabitation. This means that Pennsylvania couples can be separated while still sharing the same house, or even the same bedroom, provided they no longer fulfill the duties and obligations of husband and wife. In practice, at least one or both spouses must clearly, unambiguously, and intentionally communicate their intent to stop living as a married couple.

Other key factors the court will consider include:

When the couple stopped sharing meals and expenses
When they stopped having sexual relations
The amount of time they both spend in their shared home
Outings and other actions done for their children's sake

In a Pennsylvania uncontested divorce, the couple involved are required to live "separate and apart" for at least one year. However, if both spouses agree on all issues such as alimony, child support, child custody, and property division, they can opt for the alternative 90-day waiting period before filing. Also, there is no separation timeline or waiting period to file a fault-divorce.

An annulment just like a divorce ends a marriage but the legal process goes further to declare the marriage void. By law, such a union is treated as if it never existed. Note that annulment in this context is different from religious annulment - granted by a clergy person or religious institution and has no legal standing as far as the Pennsylvania divorce law is concerned. For a marriage to be annulled in the state, certain conditions must be met and the marriage must be either a void or voidable marriage (23 Pa.C.S.A. §3303).

A void marriage is considered invalid or unlawful in the eyes of law. Typically, the marriage is declared void once it is filed in court. Grounds for the annulment of a void marriage in Pennsylvania include:

Inability to give consent due to age: That is, one spouse is under the age of 18. In this case, the parent or guardian of the underage spouse can file for annulment if they did not consent to the marriage.
Bigamy: One spouse has another valid marriage with someone else.
Incest: Both spouses are related within consanguinous degrees. This means that they share blood relations such as brother and sister, first cousins, uncle and niece, aunt and nephew, etc.
One spouse is mentally incapacitated/incompetent and therefore unable to give consent.

On the other hand, a voidable marriage is lawful and continues to be valid until it is nullified. Usually, a trial takes place and the plaintiff must have evidence to support their claim. In Pennsylvania, a marriage is voidable if it meets the following conditions:

One spouse is below the age of 16, and the marriage took place without court authorization.
One spouse is between the ages of 16 and 17 and the marriage happened without parental consent.
Either party was under the influence of alcohol or drugs as at the time of the marriage.
One spouse is unable to consummate the marriage or bear a child due to an incurable impotence that developed prior to the marriage. For a marriage to be annulled on this ground, the other spouse must prove that they were not aware of the condition before the marriage ceremony.
One spouse's consent was obtained via fraud, duress, force, or coercion. Note that the annulment will not be granted if the victim-spouse voluntarily continues to live with their spouse after discovering the fraud.

In Pennsylvania, the timeline for annulment is 60 days from the date of the marriage ceremony. Also, annulled marriages are not valid and children born of the marriage are treated as if they were born to single parents. In such a case, the presiding judge will establish paternity and decide child support, permanent custody, and visitation rights.

Pennsylvanians looking to end their marriages are advised to speak to state-licensed divorce attorneys to analyze their situations and determine whether divorce or annulment is the best action for them.

Divorce and Property in Pennsylvania

In accordance with the Pennsylvania divorce law, property in a divorce is divided equitably and fairly between the two parties involved in the dissolved marriage. This is because Pennsylvania is what is known as an "equitable property division" state. While there is no hard and fast rule as to who gets what, the court ensures that only marital properties are shared. By definition, marital property is any asset in any form acquired by either spouse during the marriage or with commingled funds earned during the marriage. This is true for all properties such as home, cars, furniture, stocks, investments, retirement accounts, and bank accounts.

In addition to the length of the marriage and the sources of income of both parties, other factors considered by the court when dividing property after a Pennsylvania divorce include:

The value of property.
Financial contributions from previous marriages.
The custodial parent of dependent children.
The status of each spouse including the health status, age, amount, source of income, skills, employability, and needs.
How much each party has contributed to the training, education, and increased earning power of the other spouse.
The future money-making potential of each spouse as well as their capacity to acquire assets and income.
Each spouse's standard of living prior to the divorce.
How much each party contributed to the acquisition of the property (income, as a homemaker, debt, etc.)
Each party's economic circumstances and the welfare of children after the divorce
Tax reallocation consequences of the divided property
The cost of selling, transferring, or liquidating assets
Prenuptial and postnuptial agreements

Separate property owned before marriage, inheritance, and gifts are not divided. However, an inheritance becomes marital property if it is saved in a joint bank account owned by both spouses.

Of note, marital misconduct such as adultery is not considered during property division in Pennsylvania. This means that the victim-spouse will not be awarded more marital estate because the other spouse was at fault.

In the end, the Pennsylvania Divorce Court splits the marital property in a way that is fair. It could be 50/50, 70/30, or even 60/40, if deemed appropriate. This is different from "community property division" practiced in some other states where marital property is valued and split 50/50 down to the middle. Even then, debts incurred during the course of the marriage are split 50/50 between both parties.

Pennsylvania uncontested divorces do not make it to trial and property division criteria are not determined by a judge. Instead, both parties with the help of their attorneys make an equitable distribution of their co-owned assets and also decide who will keep the house. Regardless of the nature of the divorce, the custodial parent is usually allowed to continue living in the home. This is to limit the disruption to the children's lives. However, this is not a standard rule.

Pennsylvania Divorce Attorney

As a rule of the thumb, prospective divorcees should seek the advice of experienced Pennsylvania divorce attorneys before filing for divorce or annulment in the state. While it is possible for spouses to self-represent themselves in uncomplicated divorce cases, it is important to speak to an attorney who is well-versed in the affairs of the state's Divorce Court. This is because self-represented litigants are held to the same standards as licensed Pennsylvania divorce attorneys. A divorce attorney will analyze the specific situation from a legal standpoint, predict the possible outcome, and prevent potentially costly mistakes. For example, during their divorce process, some spouses do not declare all their marital and non-marital property. The duty of a family lawyer is to discover hidden assets and ensure equitable distribution.

The Pennsylvania Bar Association features a Lawyer Referral Service where anyone can search for, and find family lawyers, in Pennsylvania. Note that a $30 consultation fee applies.

How to File for Divorce in Pennsylvania

Interested and eligible persons may file for divorce in Pennsylvania through a county-level court known as the Family Division of the Court of Common Pleas. Either spouse can initiate the process by filing the applicable paperwork with the clerk/prothonotary of the Court of Common Pleas where one or both spouses live or work. After filing the paperwork, the other spouse (defendant) will be served. The next step of action depends on the nature of the divorce.

In a Pennsylvania uncontested divorce, both mutually consenting spouses will observe a wait of 90 days, counting from the date the Divorce Complaint and Notice to Defend were served. Once the wait time elapses, the couple are required to sign a consent form, declaring their consent to proceed with the divorce. This form is known as the "Affidavit of Consent" and must be filed within 30 days after it is signed/dated.

In addition to the consent form, each spouse will need to file and sign four more forms:

Notice of Intention OR Waiver of Notice: Using this form, the plaintiff-spouse notifies the defendant-spouse of their intention to file the Praecipe to Transmit Record. This usually takes 20 days. However, if both spouses sign the Waiver of Notice form, then Form 2 will be filed immediately.
Praecipe to Transmit Record
Proposed Divorce Decree containing alimony, property division, custody, and visitation agreements
Any other applicable local form provided by the county

After filing forms 2,3, and/or 4, a judge certifies the record of divorce while the Prothonotary mails the final divorce decree to the different addresses of the now ex-spouses.

The process of getting a presumed consent divorce is almost the same with uncontested divorce. The only difference is that the plaintiff in a presumed divorce case must file and serve three additional forms at the point of filing the Affidavit of Consent. These forms include:

Affidavit to Establish Presumption of Consent
Counter-Affidavit to Establish Presumption of Consent

To file a no-consent or contested divorce, first live separate and apart from the other spouse and then proceed with the following steps:

File the Notice of Claim and Divorce Complaint in the Prothonotary Office.
File both the Affidavit Under Section 3301(d) of the Divorce Code) and a blank Counter-Affidavit. The Affidavit declares that the couples have been separated for the applicable time period.
At the same time, serve the other spouse with a Notice of Intention to File the Praecipe to Transmit Record - giving the other spouse the opportunity to raise a counterclaim.
Also, file the divorce decree and any other applicable county form.

Note that if an unrepresented defendant is serving in the military at the time of filing the divorce, the plaintiff is required to file the Affidavit of Non-Military Service.

The filing fees vary from one county to another. Persons unable to pay the fees are required to complete and submit the In Forma Pauperis Form.

Pennsylvania Alimony

Pennsylvania alimony otherwise known as spousal support, is a court-ordered payment that one spouse makes to the dependent spouse during and after a divorce. In the general sense, alimony is appropriate in cases where there are wide disparities in the incomes of the involved spouses. Pennsylvania Law awards alimony if the court deems it necessary. To determine this, various factors outlined below are considered (Divorce Code §3701)

The sources of income of both parties including their earning capacities, retirement, insurance, inheritance, etc.
The length of the marriage
The ages and physical, mental, and emotional attributes of the couple
The level of commitment of each spouse, including contributions as a homemaker
The education standard of the spouse seeking for maintenance

In addition, the court may consider misconduct when deciding whether to award alimony or not. For instance, if a spouse cheats and then requests for alimony during a divorce, the court may deny or reduce the alimony because of the bad behavior.

There are three types of "alimony" in Pennsylvania. They include spousal support, alimony pendente lite (APL), and alimony. Spousal support is awarded during the separation period before a divorce. Once divorce is filed, the terminology becomes alimony pendente lite. Even then, both spousal support and APL are paid and calculated using the same formula. After a divorce, the payment made by the higher-earning spouse to their ex-spouse is known as alimony.

Since 2019, Pennsylvania alimony is calculated before child support and is based on net income of both spouses. Speak to a divorce attorney in Pennsylvania to weigh your chances of getting alimony before, during, and after a divorce.

Pennsylvania Child Custody

Pennsylvania Court considers the best interest of the child when determining Pennsylvania child custody. Also, the wishes of children who are mature enough to express independent and reasoned preferences play a major role. Pennsylvania Child Custody Statute is in line with the Uniform Child Custody Act (UCCA) which intends to limit child custody conflicts across different states. Joint parental custody and grandparent visitation rights are recognized under the state custody laws. Of note, Pennsylvania is neither a mother- or father-custody state. This means that the state does not favor any gender when awarding child custody.

During a divorce, both parents will make custody arrangements for their children. If they do not agree, the court will make a suitable parenting plan in the children's best interest. The most common arrangement in Pennsylvania is joint legal custody and sole physical custody where the children live with one parent on a full-time basis while both parents make major life decisions on behalf of the children. The non-custodial parent also gets visitation rights.

Pennsylvania Child Support

Pennsylvania child support or child maintenance refers to a court-ordered payment made by a non-custodial parent to the custodial parent for the purpose of covering the financial welfare of their child. In Pennsylvania, parents paying child support are obligated to pay monthly and maintain the payment until the child turns 18 years. However, child support may continue beyond the age limit if the child is still in high school, or has special physical or mental conditions that require additional support.

The Pennsylvania Department of Human Services runs the state's child support program. The child support process starts when the custodial parent in a divorce is determined. The parent is required to complete and submit the Application for Child Support to the county Domestic Relations Office. The amount to be paid is based on the reasonable needs of the child and the parent's ability to pay. Usually, child support is reviewed and modified every four years to suit the current circumstances of the child. It is recommended to speak to an experienced family lawyer when dealing with child support issues.

Pennsylvania Divorce Forms

Pennsylvania divorce forms are specific to different types of divorce. All intending divorcees including those who wish to represent themselves in court are advised to go over the paperwork with a divorce attorney licensed to practice in the state. To get local forms applicable to individual counties, contact or visit the local county courthouse using the courthouse finder tool provided by the Pennsylvania Unified Judicial System. The different divorce forms include:

Pennsylvania "No Fault and Mutual Consent" Divorce Forms:

For Pennsylvania No Fault and Presumed Consent Divorce, also complete the Affidavit to Establish Presumption of Consent Form in addition to the forms listed above.

The plaintiff-spouse is required to serve or deliver a copy of all the forms to the defendant-spouse. This can be done via personal service, mail, or acceptance of service. The service forms include:

Note that contested divorce in Pennsylvania is complicated and the forms to fill vary from case to case. As such, couples dealing with bad divorces involving property division, alimony, and military spouse issues are required to hire lawyers.