Divorce... Continued

In order to get a divorce, one spouse, must institute a divorce action with the Court in the county where one of the spouses resides. The other spouse may then claim certain legal rights or contest the divorce is that spouse chooses to do so.
Before 1980, the only way that Pennsylvanians could obtain a divorce was by proving fault. One spouse was required to participate in a court hearing to prove that the other spouse had committed fault grounds and that the spouse seeking the divorce was the innocent and injured spouse. While such grounds still exist under the law today, they are rarely used. Since 1980, Pennsylvania Law also permits spouses to get what is commonly known as a "Mutual Consent" or "No Fault" divorce. In order to obtain a No Fault divorce, the spouses must wait at least ninety days after the divorce action was first started with the Court; however, the divorce never becomes final automatically. At any time after ninety days, the parties can end their marriage by simply signing documents, known as Affidavits of Consent, which are then presented to the Judge (who signs the final divorce decree). Where the spouses have continuously been separated due to marital difficulty for more than two years, either spouse can obtain what is known as a Unilateral No Fault Divorce. A Unilateral No Fault Divorce is obtained by suing for divorce in court and then giving legal notice to the other spouse of the intent to proceed with the divorce, after which the appropriate final paperwork is filed with the Court.
At the present time, nearly all divorces are eventually ended or decreed as No Fault divorces. Where divorces are contested, they are most frequently contested over entitlement to some other legal rights, and not over the question of whether or not the marriage should be ended. Quite often a spouse will refuse to sign the Affidavit of Consent until he or she is satisfied with the settlement of other rights. Many times, the spouses are ultimately able to settle all of their differences in an out of court settlement. Final settlement papers are then drawn up in legal language, signed, and submitted to the Judge with the Affidavits of Consent. If the spouses cannot agree to the settlement of all of their rights, then the Court will hold a trial or hearing and decide the disputed rights or issues.
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The Pennsylvania Divorce Code of 1980, as amended, provides for Equitable Distribution of Marital Property. According to Black's Law Dictionary, EQUITABLE means "just"; it does not necessarily mean “equal”. After trial or hearing, Courts weigh the evidence (using a list of thirteen factors required by the Divorce Code) and arrive at a percentage split of the marital property. The Pennsylvania Divorce Code specifically provides that fault is not a factor in equitable distribution. The split can be 50-50% or it can be 70-30%, 60-40%, 55-45% or any other split that the Court determines to be equitable. The law generally defines MARITAL PROPERTY as all property (real, personal, tangible or intangible) which has been acquired (by either spouse) during the marriage, regardless of how it may be titled. Property which either spouse owned before marriage is referred to as EXEMPT PROPERTY. Inheritances and Gifts to one spouse (from persons other than the other spouse) are also exempt property. Property which would otherwise be exempt property becomes marital property if is titled in joint names after the marriage. If the exempt property increases in value or equity during the marriage, then the item itself remains exempt but the amount or the increase is marital property.
In deciding cases of equitable distribution of marital property, courts first compile a list of all marital property and the value of each item, after deduction for any liens or encumbrances. The court then assigns a percentage of the total estate to each spouse. Next the court awards the items on the list, in-kind, to one spouse or the other, after which the court directs a cash payment to exactly balance the split. Courts also have the power to direct that property be sold and the proceeds divided; however, this seldom happens unless the spouses agree that the property is to be sold.
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Under certain circumstances, a needy spouse can get help from the other spouse in paying legal fees and court costs. Spousal support or alimony pendente lite (see the separate article on Support in this webpage) is intended, in part, to help the recipient spouse to pay their court costs and attorney's fees. Courts only award additional help where requesting spouse has little or no income and where there is very little marital property to be divided. Sometimes when a spouse violates a court order or commits contempt of court, the court will direct that the guilty spouse pay the innocent spouse's court costs and lawyer's fees.
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The Divorce Code sets forth a procedure through which either spouse can get a court order requiring both spouses to attend up to three sessions of marriage counseling. Spouses sometimes request such counseling in order to help the couple to end their divorce more amicably or to improve their cooperation concerning the welfare of their children, in addition to requesting counseling a part of a reconciliation attempt. Sometimes, counseling for parents and children can also be obtained in custody case.

Attorney Pealer will be glad to answer all your questions regarding a divorce. Please telephone (570) 784-1460 to make an appointment.

Deanna R. Pealer