Friday, September 03, 2010

Understanding the steps in a Pennsylvania divorce action

You or your spouse live in Pennsylvania and have decided to dissolve your marriage. Now what? First, take a deep breath. Divorce can often be an exhausting and frustrating process for everyone involved. You will get through this.

Understanding the technical divorce process from beginning to end will help you prepare for the steps ahead. The lawyer that you retain will be assisting you with every stage of your divorce and will handle the procedural requirements and deadlines. However, the more informed you are, the more confident you will be in your decisions. You would never start a road trip without directions or any idea of your route, so take the same approach to your divorce action. Knowledge will equip you with the tools necessary to assert your rights and work towards resolutions that you prefer and meet your needs. Understanding the process may also help you reduce anxiety about the unknown.





What does Pennsylvnia require in order to file for divorce?


Jurisdiction and Venue

Jurisdiction and venue laws tell us if you are eligible to file for divorce in Pennsylvania and, if so, which county. To file in Pennsylvania:

You or your spouse must have resided in Pennsylvania for at least six (6) months prior to filing for divorce.

To file in a Specific County:

If you meet the 6 month requirement to file in Pennsylvania, you may then file within the county where you or you spouse, or both of you, reside.


Grounds

Pennsylvania allows for grounds for divorce which can be broken down into Fault and No-Fault categories.

Fault (Very rare)

Fault divorces, under the Pennsylvania Divorce Code, can be granted in situations where you or your spouse are guilty of severe misconduct including desertion, adultery, cruel and barbarous treatment, one spouse being sentenced to prison time for two (2) or more years and other such harmful behavior that made the other spouse’s condition intolerable. Fault divorces can also be granted in Pennsylvania if one spouse is committed to a mental institution for at least eighteen (18) months prior to the other spouse filing for divorce and there is not a likelihood of discharge for at least 18 more months.

Fault divorces require a finding by the court of such poor behavior as to justify a divorce or that the spouse is indeed committed to an institution for an extended period of time. This process, especially if it includes showing the horrible mistreatment of one spouse by another, can be emotionally draining for both parties. Because fault-divorce can be such an emotionally tolling process beyond the normal stress of a divorce, most parties pursue a divorce under No-Fault grounds. Fault divorces are so rare that many lawyers go through their entire careers without handling a fault divorce.


No-Fault (Very common)

No-Fault Grounds, under the Pennsylvania Divorce Code, can be granted in two situations: (1) where the parties Mutually Consent to the divorce (a 3301(c) divorce) or (2) where the court finds there has been an Irretrievable Breakdown of the marriage after a twenty-four (24) month separation (a 3301(d) divorce).

1. Mutual Consent: Where 90 days have passed since the date when the divorce action was commenced and the defendant served, and both parties consent to the divorce, the court will have grounds to dissolve the marriage. However, if other claims are pending, such as equitable distribution, those issues must be resolved first.

2. Irretrievable Breakdown: In order to qualify for a divorce under Irretrievable Breakdown, you must have lived separately from your spouse for at least two (2) years and the marriage must be irretrievably broken.

As you can imagine, if your spouse consents to the divorce, the process is usually easier and less protracted.



I believe I meet the Pennsylvania requirements. Now what?



Step One: Gather Records

You are going to need many documents and records for both your lawyer and the court. It is a good idea to begin gathering these as soon as possible as some will take longer to acquire then others. An early start on this organizing task will decrease the stress of later having to rush to get all of your records together and will also alert you to the records that you are missing. Some documents that you will almost certainly need include:



• General information about you, your spouse and any children including names, birth dates, current addresses and social security numbers.

• Marriage Certificate

• Estate Planning Documents including wills, trusts, etc. of both you and your spouse. (These can be a guide to the marital assets)

• Proof of grounds that you are seeking: for example proof of date of separation (a common example is proof that one spouse obtained a separate residence).

• Court Orders, if applicable, between you and your spouse including Child Support and Custody Orders and Domestic Violence Orders.

• Pre and Postnuptial Agreements, if any exist

• Financial Documents: This can, and often is, the most tedious part of document gathering. It is not uncommon for one spouse to handle most of the financial issues in the marriage but this can create complications during divorce proceedings if the other spouse has limited knowledge of the couple’s financial situation or where any financial documents could be stored. Of course, each couple’s financial situation is unique and the complexity of your documents can range from simple, easy to obtain documents to extensive, complex financial arrangements. Your situation will determine what exactly you will need to obtain, and your lawyer will be the best one to guide you in this process. Do not despair if you cannot find the information - your attorney can obtain it though the discovery process. As a general matter, you will need at least the following documents for both you and your spouse:

• Tax Returns

• Pay Stubs

• Proof of any other income (Social Security, public assistance programs, child support, etc)

• Bank Account Statements for you and your spouse individually as well as any joint accounts

• Credit Card Statements for you and your spouse individually as well as any joint accounts

• Stocks, bonds and similar assets

• Retirement and Pension accounts

• Deeds or leases to property

• Automobile titles

• Loans including those for mortgages, education, automobiles and personal loans.

• A list of monthly expenses as well as monthly bills

• Insurance Polices including health, dental, life, homeowners, and automobile





Step Two: Consult with a lawyer

If you have not already done so, you should consult with a lawyer who is familiar with divorce practice in your county.  The law does not require you to have an attorney, but professional guidance through this process will be invaluable. Yes, lawyers can be very expensive and legal fees can seem overwhelming however, it is in your best interest, no matter how amicable you expect your divorce to be, to have legal representation who is able to look out for your long-term best interests. It is extremely difficult for individuals going through a divorce to view their options in a completely neutral manner. Even if you expect a smooth process, your lawyer, beyond being able to guide you through the red-tape, will be able to guide you as to the best decisions for your future. It can be quite a headache when a client has attempted to handle a divorce without legal representation and does not realize, until they are in over their head, that they need a professional to sort through everything. Save yourself the stress of later realizing you need an attorney and obtain representation from the beginning.



Step Three: Decide what you want

The divorce process will almost certainly involve negotiations between you and your lawyer and your spouse and their lawyer. Because all of the options can, at times, seem overwhelming, it can be helpful to lay out what results really matter to you so that you can refrain from getting caught up in petty arguments over arrangements or items that are not worth the emotional or financial cost of litigation. Think about what you are willing or not willing to compromise on and what you would be able to sacrifice in order to secure something else that is important to you. Some themes to keep in mind include alimony and child support (will you or your spouse ask for either?), child custody and visitation, where you would like to reside after the divorce, if you can afford to keep the home on your own, division of property (both real and personal-what really matters to you?) and division of debts.



How does the divorce process actually work?

Again, this is a process best explained to you by your lawyer, but below is a brief explanation of the steps that occur in a Pennsylvania divorce.

1) File and Serve the Divorce Complaint: The complaint and its accompanying documents will vary slightly depending on the grounds for divorce that are being sought but the basic complaint is filed along with a copy of the marriage certificate, a domestic relations information sheet and a filing fee. For fault grounds a counseling notice is attached and for irretrievable breakdown grounds a counseling notice and usually an affidavit confirming the required period of separation are attached. This package is filed with the Family Court and, within thirty (30) days of filing with the Court, the complaint must be served on the defendant (your spouse) through personal service by approved individuals, certified and regular mail or by acceptance of service. Your lawyer will show proof of service on the defendant by filing an affidavit of service with the Court.

2) Defendant’s Response: Your spouse will have the opportunity to present their own claims and also have twenty (20) days from being served to object to the allegations contained in your complaint.

3) Bill of Particulars: As stated previously, divorces based on fault grounds often require additional steps and this is one example. If you are seeking a divorce on fault grounds, your spouse can require you to file what is called a Bill of Particulars where you will have list specifically what fault grounds you seek with extensive facts supporting your claims.

4) Grounds for Divorce Granted: Before either party can move forward with economic and custody claims, the grounds for divorce must be granted. See above for a review of fault versus no-fault grounds.

5) Discovery, Inventory/Appraisements and Income/Expense Statements: When there are economic claims (division of property, spousal/child support, counsel fees, etc) in a divorce, which is almost always the case, both sides are required to submit certain documents and both sides are entitled to seek other documents relating to finances through discovery. (It is important to note that discovery is not allowed in child custody issues unless it is authorized by the court.) Additionally, although it depends on what court proceedings are necessary to resolve the economic issues, most parties will be required to file an inventory and appraisement of all property and an income and expense report accompanied by financial documents including recent tax returns and pay stubs.

6) Master’s Hearing: Almost all counties, economic claims are heard by a Permanent Master in a conference-like setting. The parties submit the above economic documents as well as a pre-hearing memorandum outlining their arguments and reasoning and the Master makes a recommendation to the parties of a resolution. If the parties cannot reach an agreement the case moves onto trial before a judge.

Almost all child custody claims are heard initially by a Permanent Master or Conciliator as well. If the parties do not reach an agreement before the Master or disagree with Master’s suggestions, this case can also move for trial before a judge. The Master/Judge procedure varies from county to county.

7) Consolidated Case Management: A small number of complex cases, which often involve a dispute over physical custody of children, can be assigned to the CCM program where one judge will oversee and rule upon all of the issues in the case.

8) Appeals from the decision of the trial judge: If, after a Master’s Hearing or a CCM followed by a trial in front of a judge, you are still unsatisfied with the outcome you can appear your case to the Superior Court of Pennsylvania.

9) Enforcement: Finally, after all of the above steps are completed and the divorce and all if parts are finalized, there can still be issues with enforcement of the terms of the divorce. Although some parties do blatantly refuse to adhere to the divorce terms, this is also, unfortunately, a situation that can arise where one or both of the parties did not retain adequate legal counseling during the divorce process leaving one or both of the sides confused or unhappy with what is required of them. There are court proceedings that you can take to enforce your rights under the divorce. Also, if your circumstances change in a drastic way in the future, there are court proceedings you can take to request a change to the terms of your divorce that relates to child custody and child support. It is very unusual for alimony to be reconsidered by the court. Also, the court will not reconsider property division once the divorce is finalized, absent serious and extenuating circumstances, such as fraud.

So now you know the general layout of the Pennsylvania divorce procedure. I understand that at first glance it can seem overwhelming and exhausting but many others have gone through this process and come out on the other end happier and ready to start a new chapter of their life. Even if you are still unsure about whether you need to retain legal advice or not, take the time to set up a consultation with a lawyer. You will learn more about what your individual case would look like so that you can be fully prepared should you choose to follow through with the divorce now or at some time in the future.

Post by Elizabeth Early, Third Year law student - Temple University.  Edited by Linda A. Kerns, Esquire.

38 comments:

Anonymous said...

I have been going through a divorce in PA for almost 4 years!!
Yes...you read it correctly; 4 years. At this point because it was contested and the division of property had to be decided by the Judge back in March of this year, I am still waiting for the "Judge"...to make his final decision of asset distribution. He told us it would take up to 60 days but as you can see we are well over that. Is this normal? What can I do to press the process?
Yes, I have an attorney but, it is a small town along with small town "drama". Yours truly, Stressed!

JF said...

What can you tell me about Divorce by Publication. My husband left in April this year and the car lender, nor Domestic Relations can locate him. We have no property...only 1 child. Is it that hard to flle for divorce and full custody myself?

Anonymous said...

My spouse and I are filing a mutal consent divorce and everything has already been divided, we also have done the marriage counseling. We have not been separated for 2 years yet, but I want to remarry. I live in pa and there is a 90 day waiting period. What are the chances of my divorce being expedited?

Anonymous said...

I need help. I need an attorney to walk mw through this process

Anonymous said...
This comment has been removed by a blog administrator.
Anonymous said...
This comment has been removed by a blog administrator.
Anonymous said...
This comment has been removed by a blog administrator.
CONTACT DR OBODO +2348155425481 said...
This comment has been removed by a blog administrator.
Anonymous said...
This comment has been removed by a blog administrator.
Anonymous said...
This comment has been removed by a blog administrator.
Anonymous said...
This comment has been removed by a blog administrator.
Anonymous said...
This comment has been removed by a blog administrator.
Anonymous said...

Thank you so much. I am currently going through a divorce, have an attorney that has not been keeping me informed and I feel unsure of the next steps. Through your steps, I clearly see what has occurred in these 15 months and where we are headed. Great information.

Anonymous said...
This comment has been removed by a blog administrator.
Dr Amadi said...
This comment has been removed by a blog administrator.
Dr Amadi said...
This comment has been removed by a blog administrator.
Dr Amadi said...
This comment has been removed by a blog administrator.
clark johnson said...
This comment has been removed by a blog administrator.
sharron jenna said...
This comment has been removed by a blog administrator.
Anonymous said...
This comment has been removed by a blog administrator.
sonia smith said...
This comment has been removed by a blog administrator.
Mercy brown said...
This comment has been removed by a blog administrator.
Stacey Sleck said...
This comment has been removed by a blog administrator.
Anonymous said...
This comment has been removed by a blog administrator.
Orison Mark said...
This comment has been removed by a blog administrator.
LOVE SPELL CASTER said...
This comment has been removed by a blog administrator.
Anonymous said...
This comment has been removed by a blog administrator.
christabel thomas said...
This comment has been removed by a blog administrator.
Anonymous said...
This comment has been removed by a blog administrator.
Pires Melde said...
This comment has been removed by a blog administrator.
Anonymous said...
This comment has been removed by a blog administrator.
juan Hillary said...
This comment has been removed by a blog administrator.
juan Hillary said...
This comment has been removed by a blog administrator.
Tilly said...
This comment has been removed by a blog administrator.
Anonymous said...

Is it possible in PA, prior to an actual divorce, for both parties to agree to a complete, binding financial division of assets that would take place immediately and remain in effect if an actual divorce were to eventually take place?

http://ernstashurovlaw.com said...

Nice one! like it! Thanks!

Anonymous said...

I am five months into a divorce. I served my Husband in March 2013. He has a history/court PFA's and harrassment, and potential adultery. I filed no fault but may change.
We have not had discovery as yet nor answered his initial proposal for division of property three weeks ago and this past week were in receipt of a masters petition from his lawyer to settle the remaining assets, home/car/bank accounts etc. How successful could he be here? My attorney has already responded to the petition and we are waiting for the judge to make a decision or a court hearing. Thanks

lets get it over said...

We both agree on Divorce. I work, spouse is self employeed. We have two kids. Spouse is not leaving the house nor am I. Its been over 5 months since spouse filed, My lawyer just filed Acceptance, so now I have to wait another 90 days? Spouse won't agree to anything, Spouse wants 50/50 custody, wants to keep the house and other property, wants me to walk away with nothing. How do theses cases normally turn out, ALL property sold? I have a lawyer and can't afford to change them, just feel I'm not getting the right assistance I need.