What is the procedure for starting a divorce?
One spouse, called the “Plaintiff,” files a legal document called a “Complaint in Divorce” at the courthouse. The complaint states the names and addresses of both spouses and what type of divorce is being sought. The complaint may also state that the plaintiff is seeking other things, like support, alimony, custody, and a property settlement. A copy of the complaint must be given to (“served upon”) the other party, called the “Defendant.” Divorce complaints are usually served upon the defendant either by certified mail, the sheriff, or an adult other than the plaintiff.
A divorce can be filed in Pennsylvania only if at least one of the spouses has lived in PA for at least the last 6 months. Such divorce complaint can be filed in a county where one of the spouses lives here or in any county if both parties agree in writing that the divorce should be filed there.
What are the types of divorce in PA?
There are 4 basic types of divorce. The first 2 are no-fault because you don’t have to prove that it was your spouse’s fault that the marriage fell apart.
- Mutual consent divorce: This is the most common type of divorce. Ninety (90) days after the divorce complaint has been served upon the Defendant, both parties can file an affidavit consenting to the divorce and other documents. The judge can then grant the divorce. During the 90 days, the attorneys may try to work out a written settlement agreement about issues like custody, support, alimony and a property distribution. The parties can sign a written Separation Agreement, which the Judge can adopt as an Order of Court. If an agreement cannot be reached on these issues, there can be a hearing and the court will decide these issues.
Warning: If the divorce becomes final before you formally in writing ask the court for a property distribution, alimony or other economic rights, you could lose the right to obtain those things.
- A two-year separation divorce: This is also a no-fault divorce. If one of the parties refuses to sign an affidavit consenting to the divorce, the other party can wait until the parties have been separated for two years. Then the party who wants the divorce can sign an affidavit stating that the parties have been separated for at least two years and that the marriage is irretrievably broken. The affidavit must be served upon the other party. If that party fails to respond, the court can grant the divorce. However, if a counter-affidavit is filed denying the two-year separation or denying that the marriage is irretrievably broken, a hearing may be held and the court will decide if the parties are entitled to a divorce.
- Fault divorce: This is the old fashion kind of divorce, but it’s still on the books. The plaintiff must prove at a hearing that the plaintiff is innocent of wrongdoing and that the defendant is at fault — such as proving that the defendant committed adultery, endangered the plaintiff’s life, deserted the plaintiff for at least one year, has been sentenced to imprisonment for at least two years, or has “offered indignities to”, (which basically means mistreated), the plaintiff. Most people do not file a divorce on fault grounds for two reasons. First, a fault divorce is very expensive, because the parties must pay attorney fees for the hearing and must pay the master who hears the case and the stenographer who must record all of the testimony. Second, the plaintiff must prove that the plaintiff is innocent of wrongdoing. If the defendant proves that the plaintiff mistreated the defendant, then the court may deny the divorce.
- Mental hospital: The court can grant a divorce if the defendant has been in a mental hospital for the last 18 months due to insanity or serious mental disorder and is expected to remain there for at least 18 more months.
Does PA have alimony?
Yes. Alimony is for support for a spouse (wife or husband) after the divorce is granted. A spouse is entitled to alimony only if the court decides that alimony is “necessary.” To decide whether alimony is necessary, how much should be paid, and how long it should be paid, the court must consider many factors – including but not limited to the relative income and earning capacities of the parties, the ages and health of the parties, the duration of the marriage, the contribution by one party to the education and training of the other party, the contribution of a spouse as a homemaker, and the marital misconduct of a spouse before the separation. It is very difficult for an attorney to predict how much, if any, alimony will be awarded by the judge.
Warning: If the divorce becomes final before you formally in writing ask the court for alimony, you could lose the right to obtain alimony.
How are debts and assets divided up in PA?
After the divorce complaint is filed, either party can ask the court to divide the marital assets and debts. The court must divide the marital assets and debts in a fair manner. Marital assets include most items acquired during the marriage (such as house, car, furniture, bank accounts, life insurance, and future pensions) even if the item is listed on the title or deed as belonging to only one spouse. If one spouse owned real estate before the marriage, and it has increased in value during the marriage, the increase in value is a marital asset which the court must consider.
In dividing the marital assets and debts, the court considers many factors – including but not limited to: the length of the marriage the needs of each party; the age, health, and income of each party; who will have primary custody of the children; and the contribution of each party to acquiring and improving the marital property (including the contribution of a spouse as a homemaker). In dividing the marital assists and debts, the court does not consider marital misconduct before the separation.
The law is very complicated concerning the division of marital assets and debts. Make sure you talk with an attorney before you make any assumptions about how these items should be divided.
Warning: If a divorce becomes final before you formally in writing request the court for property distribution, you may lose your right to obtain it.
Can the court stop my spouse from dissipating – taking, hiding, destroying, selling – the marital assets?
Yes, once a divorce is filed, the court has the power to do this. You must ask for this. If your spouse has already dissipated some of the marital assets, he or she may have to account for them later (such as by paying you your fair share of those items).
Should the same attorney represent me and my spouse in a divorce action?
It is usually best for you to have your own attorney who is looking out for your best interests.