Family Law

My spouse is having an affair. How does this affect the divorce?

In PA, the following fault divorce grounds justify a divorce under 23 Pa.C.S. § 3301(a):
1. Desertion for one year or more;
2. Adultery;
3. “[C]ruel and barbarous treatment” that put your life or health in danger (i.e. abuse);
4. Bigamy (i.e. your spouse was already married);
5. Your spouse was sentenced to prison for a crime for two or more years; or
6. Your spouse made your “condition intolerable and life burdensome” by their actions.
Alternatively, you can also get a divorce if your spouse was institutionalized (e.g. for mental health reasons). For this to work, your spouse must have already been institutionalized for 18 months, and will not be discharged for another 18 months with no signs of improving.

Filing a fault divorce is often more complicated than a no-fault divorce and requires bringing the proof of your divorce grounds to court. However, if fault grounds are proven, it can have an affect on whether or not one spouse is entitled to and/or receives or has to pay alimony. Many factors are at play, so it is best to speak with a lawyer in this circumstance.

What if I am afraid to file for divorce?

If you are a victim of any kind of abuse, we encourage you to get an appropriate order for your protection. This may include obtaining a Protection from Abuse Order.

If you are being mentally or physically abused, please contact SAFE BERKS now so that they can assist you with your safety. They are available 24/7 at 844-789- SAFE or text SAFE BERKS to 20121. If it is the financial aspect that has you concerned, there are many factors to consider in the divorce code when determining who should get what assets and different types of support that can help you during the divorce process and afterwards. This is another aspect in which your particular circumstances influence the outcome and speaking with a lawyer before you do anything is always best.

Do spouses in a common law marriage need a divorce?

Common Law Marriage was eliminated in Pennsylvania in April of 2005. However, couples who entered into a common law marriage before that date are still recognized as married and therefore would need to file for divorce and follow the normal procedures to obtain a divorce decree.

Can I leave the house?

It may or may not be recommended depending on your individual financial circumstances. This decision can also be influenced by whether or not children is involved. Of course, if you or any member of your family is the subject of abuse, please see the information for SAFE BERKS listed above, as it is not recommended that anyone remain in an abusive situation, particularly if your safety is in question. Otherwise, this question is better answered by a lawyer after a brief discussion of your financial and family circumstances.

How does the court decide who gets what? Who is responsible for the debt?

In Pennsylvania, family law courts divide marital property using a system called equitable distribution. The goal of equitable distribution is to effectuate economic justice between the parties, rather than automatically splitting assets into equal shares.

Key factors used in determining distribution are the parties’ respective incomes, capacity for future earnings, age, contributions as homemaker or caretaker of children, and value of nonmarital property. Lesser factors to be considered are length of the marriage, other marriages, contribution to education/earning capacity of the other party, contributions to or dissipations from the marital estate, standard of living, and tax ramifications of retaining certain assets.

Because of the varying factors involved, the decision is going to be different in each case, as each family has its own financial portfolio and individual differences that will affect the ultimate outcome.

Why do I need a postnuptial agreement? Can’t we just divide the stuff ourselves?

A postnuptial agreement sets forth who gets what assets and who will be responsible for any debt, amongst other issues. Dividing the stuff yourself or doing your own agreement is usually a bad idea. Most likely, the agreement will not be specific to state laws and may miss important legal provisions that could assist with enforcing the agreement. It might be vague or unclear. If so, and you and your spouse disagree on a provision later, you may end up spending more money on attorneys, trying to fix or clarify the agreement. It’s probably worth a few hours of an attorney’s time to get a good agreement in place.

What about my retirement? What is a QDRO?

Anything acquired during the marriage, is considered marital property and can possibly be subject to division by the court. A QDRO, or a qualified domestic relations order is a method of transferring funds from a retirement account, such as a pension, IRA or 401k to another qualified retirement account so that the funds maintain their tax-free status for both parties.

Am I entitled to spousal support or alimony?

You may be. Under Pennsylvania law, married people are financially responsible for each other – the husband has a duty to support his wife, and the wife has a duty to support her husband. This duty lasts until the final Decree in Divorce is granted. It doesn’t stop simply because the couple separates. During the period of separation or pending divorce, an agreement or order of support payments may be appropriate if the parties are indeed separated.

Alimony in Pennsylvania, on the other hand, can only be received after the divorce decree has been finalized and all issues regarding property division, or equitable distribution, are resolved as well. The law provides for a list of seventeen factors that need to be considered in order to determine if someone should receive alimony.

Because many factors are involved, it is important to discuss your unique situation with an attorney to determine if support or alimony will be awarded in your case.

Why should I draft a will and estate plan or have my will and estate plan revised?

For various reasons, divorces can take longer than originally expected, or worse something can happen while the divorce is pending. It is important to update your will and other estate planning documents or draft your initial documents to ensure all of your assets don’t automatically go to your spouse that you are in the process of divorcing if something were to happen to you. It is also important to ensure you have designated a power of attorney who you can trust to care for your physical and financial well being in a manner that is impartial and serves your best interests.

How is custody decided?

The court is mandated to determine the best interest of the child. There are 16 factors to consider when determining what is in the best interest of the child. This also means that the court may or may not enter an Order that reflects what you or the other parent has requested for a schedule. Because this determination is complex, it is important to have a lawyer involved early on.

What if I am not sure if I am the father?

In Pennsylvania, paternity is established in the following ways:

• • If the parents were married to each other when the child was born, paternity is presumed;
  • If during the lifetime of the child, it’s determined by clear and convincing evidence that the father holds out the child to be his and either receives the child into his home or provides support to the child; or
  • If there’s clear and convincing evidence that the man was the father of the child, including through genetic testing or a prior court determination of paternity.

Once paternity is established for any length of time, it can be difficult to undo and can lead to a duty to support the child, both financially and emotionally, until they emancipate, even if the child is not biologically yours. On the flip side, if paternity is not established, your parental rights may not be recognized, despite your prior actions. It is important to talk to a lawyer early on if paternity is in question for any reason.

Can we just write down a schedule and sign it in front of a notary?

This is not recommended, as you need a Court Order for a custody schedule to be enforceable. The first and most important reason for getting a child custody order is if/when the other parent will not give you access to your child. Most people think this type of thing will never happen to them, that the child’s parent has been working with them for months or even years with no issues.

The key here is that it can happen, and often does. Maybe the two of you have a disagreement about who will have your child for the holidays or maybe you start dating someone new that the other parent doesn’t like. You will have to go through the time consuming and lengthy process of establishing a child custody arrangement to gain access to your child. This includes filing paperwork with the court, waiting for a court date (which can take at least a month) and getting the actual order from the judge. This means you could spend over a month without access to your children. It is better to get these things established just in case than being stuck in a bad situation where you can’t see your children. This is true even if you and the other parent agree on a schedule.

What does it mean to relocate?

Pennsylvania has enacted legislation regarding relocation that is applicable in any situation where one party seeks to relocate with a minor child. The relocation statute requires the consent of all parties, or permission of the court, before relocation may occur. Relocation is defined as a change in the child’s residence that significantly impairs the ability of the non-relocating parent to exercise custodial rights. The definition of impairment is without reference to whether the proposed relocation is interstate, intrastate, or even within the same county. Significant impairment includes the inability to attend school activities, extracurricular activities, and medical appointments. Simply giving the non-relocating parent more time will not necessarily remedy these issues. The relocation statute applies to any relocation and provides no exception for situations where there is no underlying order. This is why it is important to discuss any change in your living circumstances with a lawyer first.

The custody schedule isn’t working, what do I do?

A parenting time schedule is not set in stone. The judge can change it at the request of one or both parents. The parent who files a petition to modify the schedule could be either the Plaintiff or the Defendant in the existing custody case. A change in circumstances must be something that happened after the last custody order was entered to allow the Court to change the schedule. A change in circumstances could be as simple as a change in work schedule of a parent or activity schedule of the child or as complex as concerns surrounding the care of the child in the other parent’s home. Any change in custody involves consideration of the best interests of the child and the 16 custody factors.

Can I get child support?

Child support is generally payable to the parent with primary custody of the children by the parent with partial custody of the children. For support purposes, this is determined by who has the most of overnights with the child(ren) in a year. The parent with more than 50% of the overnights is the parent with primary custody. It is worth noting that a parent with partial custody of the child(ren) is entitled to a discount on the amount of child support owed if they have more than 40% of the overnights. If the parents have an equal amount of time, the person who earns less money is entitled to child support.

How is support determined?

Child support in Pennsylvania is calculated by a formula set forth in law based on the net incomes of the parents. Net income includes income from any source, including wages, salaries, commissions, bonuses, interest, rental income, etc. Net income also includes any spousal support, alimony pendente lite or alimony received. The only items that are deductible from the parties’ monthly gross incomes are taxes, spousal support/alimony pendente lite/alimony paid to the recipient of the child support, and mandatory deductions such as union dues. Voluntary contributions to a 401k and other monthly bills are not deductible for support purposes.

If a party doesn’t work, works part time, or is working at a job that may be under their skill or education level, a party can be assigned an earning capacity. There are also many reasons that the amount of support may be adjusted beyond the basic formula. It is easy to see why this calculation can become complex and using a simple online calculator may not give you an accurate picture of required support amounts and also why it is important to have a lawyer assist you in support conferences and hearings.