Family Law

Dissolution of the Marriage

In the State of Pennsylvania two people may obtain a decree in divorce by agreement 90 days after the party filing the divorce serves the other party. Absent an agreement, one party may force the other party to divorce after being separated for 2 years. Pennsylvania also has fault grounds for divorce, however given the other two avenues, and the fact that equitable distribution is unaffected by fault, fault grounds are rarely used.

Distribution of Martial Property

One of the things that can hold up the actual divorce is how to divide the martial estate. It is important to note that in most circumstances a divorce decree should not be entered until there is an agreement or Court order distributing the entire martial estate. It is for this reason that cheap flat rate do it yourself divorce promotions should be avoided. Unless you have no assets of value, you really need a divorce lawyer to make sure that your rights and your property are protected.

Generally, everything gained, accrued, earned, etc. from the date of marriage to the date of separation is considered a marital asset. Things that are owned prior to marriage and held in individual name during the marriage are not marital assets, but their gain in value is. Debts accrued during the marriage are generally considered marital debts for distribution between the parties.

Cases can be resolved through agreement, or in the absence of an agreement, by Court Order after an equitable distribution trial.

Although many cases turn out 50/50, there is no rule that that should be the default distribution. In fact, the court is required to consider the following factors in deciding the appropriate distribution:

• (1) The length of the marriage.

• (2) Any prior marriage of either party.

• (3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.

• (4) The contribution by one party to the education, training or increased earning power of the other party.

• (5) The opportunity of each party for future acquisitions of capital assets and income.

• (6) The sources of income of both parties, including, but not limited to medical, retirement, insurance or other benefits.

• (7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as a homemaker.

• (8) The value of the property set apart to each party.

• (9) The standard of living of the parties established during the marriage.

• (10) The economic circumstances of each party at the time the division of property is to become effective.

• (10.1) The Federal, State, and local tax ramifications associated with each asset to be divided, distributed or assigned, which ramifications need not be immediate and certain.

• (10.2) The expense of sale, transfer or liquidation associated with a particular asset, which expense need not be immediate and certain.

• (11) Whether the party will be serving as the custodian of any dependent minor children.

In the State of Pennsylvania when parents are unable to agree as to custody the Court must determine what is in the “Best Interest” of the child(ren). There are two types of custody; legal and physical. Legal custody is the ability to make decisions regarding the health, welfare, education, and religious training of the child(ren). This is generally shared equally by the parents.

Physical custody refers to who actually has physical possession of the child(ren). There are many physical custody arrangements from; shared 50/50 custody, to primary with one parent and partial non overnight custody in the other, and everything in-between.

If parents are unable to agree on the physical custody schedule, then the Court will conduct a trial and evaluate the following factors to determine what is in the best interest of the child(ren):

• (1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.

• (2) The present and past abuse commited by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.

• (2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).

• (3) The parental duties performed by each party on behalf of the child.

• (4) The need for stability and continuity in the child’s education, family life and community life.

• (5) The availability of extended family.

• (6) The child’s sibling relationships

• (7) The well-reasoned preference of the child, based on the child’s maturity and judgement.

• (8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.

• (9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.

• (10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.

• (11) The proximity of the residences of the parties.

• (12) Each party’s availability to care for the child or ability to make appropriate child-care arrangements.

• (13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.

• (14) The history of drug or alcohol abuse of a party or member of a party’s household.

• (15) The mental and physical condition of a party or member of a party’s household.

• (16) Any other relevant factor.

Generally Grandparents can only sue for partial custody, and only against parents who are no longer in an intact relationship. In some rare cases grandparents have standing to sue for primary physical and or legal custody. Grandparent custody cases are very fact specific and require the services of an experienced lawyer.

Child support is basically calculated by using the Support guidelines found at Pa R.C.P. Rule 1910.16-3. The guidelines utilize the party’s net monthly income after removing taxes and other mandatory employee contributions. The party’s combined monthly income corresponds to a combined presumed child support amount, and the payor will be required to pay their proportionate share of the child support amount based on their proportionate share of the combined monthly income.

Child support is owed to the primary physical custodian by the partial physical custodian. Custody is determined by overnights, and the parent having more than 50 percent of the overnights will be considered the primary physical custodian.

When there is a 50/50 shared custody arrangement, the higher earning parent will owe the lower earning parent. There is a reduction in the payor’s proportionate share of child support, for those payor’s who have between 40% and 50% of the overnights.

There are other factors that will affect the amount of support owed, including but not limited to; child-care, tuition, cost of health care, spousal support, multiple families. It is important to consult an attorney prior to; filing for support, or appearing for a domestic relations conference.

Spousal support is owed to the lower earning spouse by the higher earning spouse. There are a few defenses to spousal support, but generally spousal support will be owed in the amount of 40% of the difference between the party’s net monthly incomes, after taxes and mandatory employee contributions are taken in to account.

Spousal support can be sought from the moment that parties separate, up until a divorce is entered.

There are other factors that can affect the amount of support that someone is entitled to, including but not limited to; cost of health care, mortgage set-off expense, child support, length of marriage. It is important to consult experienced counsel before you file, or before you appear at your domestic relations conference.

Alimony is support paid to and ex-spouse following the issuance of a divorce decree. 23 Pa.C.S. § 3701 requires that 17 factors be considered in determining whether alimony should be awarded.

Today, Alimony is awarded less frequently than it used to be. Many households run on two incomes, and even if the parties don’t have equal earning capacities there are sufficient assets to offset the need for alimony. This is not to say that Alimony is not still a viable claim, and it is important to consult experienced counsel who can give you a good idea of whether or not you are entitled to alimony.

PFA’s are a civil remedy designed to give protection to individuals who have been placed in reasonable fear of imminent serious bodily injury by; family or household members, sexual or intimate partners who persons who share biological parenthood.

PFA’s can have significant collateral consequences beyond restraining the respondent from contacting the Petitioner. PFA’s give the Court the power to, among other things; remove the respondent from home; enter an Order for custody; and confiscate the firearms of the respondent.

Though PFA’s are civil, violating a PFA is a criminal matter. If found guilty of contempt of a PFA Order, the Court can Order fines up to $1,000.00, and up to six months in jail. Violation of a temporary PFA that is pending final hearing carries the same potential punishment of violating a final Order.

Experienced counsel should be retained whether you are in need of a PFA, or have had a PFA petition filed against you.