Posts By Pittsburgh Family Law Services, P.C.

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How can we afford to separate?

December 23, 2013 · by Pittsburgh Family Law Services, P.C.

Affordable Legal Representation for Separating Spouses in Greater Pittsburgh
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“A lot of people have asked me how short I am. Since my last divorce, I think I’m about $100,000 short.” — Mickey Rooney

“I’m not sure my spouse and I can afford to separate.”

It can be hard enough while still in your shared household to accept that you and your spouse are heading toward divorce, without having to add that complicating question: How can we afford a separation right now? You may have known or heard about other separating couples who encountered the same problem, and who had no real choice but to continue living together for a while, simply because they lacked the money to afford separate residences. Sadly, the old adage that once worked in your favor is now your next hurdle: two people live together more cheaply than they do apart. It can be challenging enough right now to continue to live with your ex in one shared household (although there are coping strategies), without the added expense of establishing and maintaining two separate homes with income that may have been barely enough for one.

How a divorce lawyer budgeted his way to freedom.
When my former wife and I first separated, we knew that we could not afford to live in two separate households right away. Even though we were able to get through our days without fighting, it was awkward and very uncomfortable for both of us. I set out to determine how to make our transition possible sooner, rather than later.

The solution turned out to be very straightforward. I created three complete household budgets: one for the two of us together, and one for each of us in our new, separate households. I used realistic, reasonable average numbers based on the way we were actually living at the time, erring high and making sure to include a fair reserve for miscellaneous expenses. Doing things this way gave us a real picture of where we stood together, and what it would take for each of us to be able to afford the extra expenses of living apart.

Click on the PDF image below to download your own joint budget worksheet.

What if it turns out that we can’t afford to separate?
When we completed the task, the picture was less than pretty. If we lived very carefully while still under the same roof, we had enough income to pay our current debt with a small amount left over. Add the cost of rent and utilities for a second home, though, and there wasn’t enough money to go around. Like most people who carry a lot of credit card debt, a substantial portion of what my ex and I were paying month-to-month was interest.

Come up with a plan.
We calculated how much income each month we needed to free up to make it possible for one of us to move out of our marital home. We recovered some of those funds by cutting our expenses as close to the bone as we thought we could manage, knowing that every dollar we saved was a step closer to the exit from our amiable-but-painfully-awkward cohabitation. When we ran out of things to cut and needed plenty more, we decided to attack our credit debt.

We decided which among our various credit card obligations had the best combination of low balance and high monthly payment to be good targets, so that when they were paid off we would have the money we needed to separate. We made our list of “target” debts and decided on which order to pay them off, ignoring which ones had high interest and instead focusing on the ones that would free up the largest amount of money for us in the least amount of time. Our focus was not long-term economy, but rather short-term cash flow.

Plan your post-separation finances.
My ex and I decided which of our consumer credit debts would still be around when we went our separate ways, and we included the monthly payment for each in the separate budget for that one of us who would be paying it, at least in the short-term. We did our best to move the numbers around on our separate household budgets so that we knew who would be paying what, and so that the monthly payments for the debts each of us were assuming fit within our respective means.

Consider whether there is a need for spousal support or child support.
Both my ex and I were earning a decent living wage when we separated, and we had no children together. If you have minor children or if one of you is economically-dependent upon the other (or both!) you will probably need to consider making the budgets balance by means of one spouse paying support to the other.

Worry less about long-term issues such as alimony, and more about short-term concerns such as spousal support and child support. To the extent that you can manage to keep your respective households afloat financially by mutual agreement, you can save yourselves substantial conflict and expense. That said, though…

Get professional legal advice from a family lawyer.
As self-serving as it may seem coming from a divorce lawyer in Pittsburgh, there is no substitute for understanding the road ahead. Knowing where you stand according to the Pennsylvania child and spousal support guidelines can help you make informed decisions that will let you do things right the first time. A good divorce attorney will not create conflict where none needs to exist, and will make sure that you are taking every important consideration into account as you structure your future. A single hour of a lawyer’s time can be cheap at the price when the advice you get can save you thousands of dollars in expenses, and months or even years of unnecessary fighting.

Stick with your budget plan.
This is the hard part, but not as hard as feeling like you are stuck in the doorway of the next part of your life! No budget is any more useful than your willingness to stick to it, and if one of you changes the rules it all falls to pieces.

My former wife and I agreed to stick to our budget like it was written on two stone tablets, and to use all the money we freed up each month against the single debt that we wanted to pay off first. Once that first debt was paid off and its monthly payment was ours again, we had that much more to throw at the next debt in line, and more still to throw at the third, until we reached our goal.

Patience. Lots and lots of patience.
It took seven months to bring us where we needed to be. Seven months of peaceful-but-empty coexistence. Seven months of careful courtesy and closed doors. Seven months of whispered telephone conversations. Once a month we paid our bills and inched our way toward our goal, only to go back to seemingly-endless waiting for our new lives to begin. From January until July of that year we did our best to make it easy for each other, but both of us had our eyes on August.

It seemed to take forever, but August finally came. It was worth it, in the end; both because it helped us to avoid a fight that neither of us wanted, and because it kept us out of the financial death-spiral that you can see everywhere, these days.

May your own separation likewise be free from conflict and disaster. As the Boy Scouts like to say, though: be prepared.

If you need legal assistance with arranging your separation in Southwestern Pennsylvania, call our office to set up a personal consultation with a Pittsburgh marriage attorney. Please do not comment anonymously, and do not post anything that you consider confidential. We try to be responsive to commentary and questions, but know that posting here will not create an attorney/client relationship and that we will not offer legal advice via the Internet.

Common law marriage in Pennsylvania

November 8, 2013 · by Pittsburgh Family Law Services, P.C.

Pennsylvania Common Law Marriage Attorney in Pittsburgh
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Beginning in early 2005, marriage under the common law in Pennsylvania was abolished prospectively, and all marrying couples must marry under the provisions of the Pennsylvania Domestic Relations Code by obtaining a marriage license from their county of residence.

What is the “common law” in Pennsylvania?
The “common law” of Pennsylvania is nothing more than a recognition by the court system that people have done certain things in certain ways for long enough that they have become part of the rules of our society, even though our state legislature never made formal laws about them. The Pennsylvania court system recognizes, defines and enforces the common law (which is established by precedent) and can make changes to it as necessary over time to reflect changes in common practice and in society. The Pennsylvania legislature can override the common law by passing a law concerning the same thing, just as it did by abolishing new marriage under the common law from 2005 onward.

How is common law marriage different from other kinds of marriage in Pennsylvania?
Once the marriage occurs, no matter how it occurs, there is no difference at all. You sometimes hear people talking about somebody’s “common law wife” or “common law husband” as if that is something sleazy or low-class, or as if that is something different from a “real” marriage, but the fact of the matter is that marriage is marriage, no matter how you got there. As a divorce lawyer in Pittsburgh I prefer to use the term “marriage under the common law” to “common law marriage” to make that clear.

How did people get “common law married” in Pennsylvania before 2005?
People became married under the common law of Pennsylvania when they exchanged words of “present intent” to marry before the beginning of 2005, with or without anything about the marriage put in writing. No marriage license or officiant was needed to get married under Pennsylvania common law. If each member of a couple who could legally marry said to the other, “I take you now for my spouse” (or words to that effect) before a witness, that was sufficient to create their marriage. You could have a wedding ceremony. You could go to a Notary Public to sign a document declaring yourselves married to each other. However it was done, it needed to be a clear and affirmative act of taking each other in marriage, just like entering into any other contract.

Am I married under Pennsylvania common law? A simple test.
When people tell me that they were married under the common law of Pennsylvania, the very first question I ask them is, “When did you get married?” Almost every single time, the answer I get is something like, “We didn’t get married, we’re common law married,” or “We’re married because we lived together more than seven years,” or “We had kids together.” No good. The fact is that people who were married under the common law in Pennsylvania have a wedding anniversary date just like couples who marry with a marriage license.

A client once asked me, “We filed our taxes together as “married.” Doesn’t that make us married?” I had to explain that this did not make him married, it just meant that he might be committing tax fraud. You could not marry by accident under the common law. You could not get married by mistake, or by assuming that you must be married by now, because you have been together for so much time. You could not get married without you and your spouse-to-be clearly stating your respective present intents to marry on the same occasion. A valid common law marriage is as legitimate and as valid a marriage in Pennsylvania as is a statutory marriage.

A court will presume that a couple is not married under the common law unless there is sufficient proof to the contrary and the supposed marriage took place prior to 2005. Such proof can include having filed joint tax returns, wearing wedding rings, and introducing yourselves in public as husband and wife. However, it is important to realize that doing these things did not create the marriage, but merely serve as proof that the “magic words” were indeed spoken on a particular date. Living together for a certain number of years would not create a marriage, even if the couple had children together. No words, no marriage… no matter how “married” the couple may have behaved. Under Pennsylvania’s common law you didn’t become married, you got married, just like anybody with a marriage license.

Some bad news for a good woman.
I once spoke with a woman who had been in a relationship with a man for more than twenty years. She had lived with him, had children with him, and stayed home to raise them while her partner earned the household money and accumulated a pension. After her partner decided to end their relationship she called me, told me she was married under the common law of Pennsylvania, and wanted to know what kind of spousal support and property division she was entitled to from the Allegheny County Family Court. I asked my usual question: “When did you get married?” She said that they never did, but told me about her understanding that two people living together and raising a family together was enough to be “common law married.” I had to give her the very bad news that she was not married, and that she had no rights to the economic benefits of marriage without having gone through the small-but-essential formality of getting married.

Did existing Pennsylvania common law marriages become invalid in 2005?
Any marriage made under the common law of Pennsylvania prior to 2005 remains valid, and will be legally recognized in a Pennsylvania family court.

Why was common law marriage abolished in Pennsylvania?
Common law marriage has caused far more problems than it has solved. Marriage under the common law is widely misunderstood, and the existence of most common law marriages is difficult to prove (which can cause trouble if the couple separates, or if one of the spouses becomes severely ill or dies without a will). Unmarried people sometimes encounter trouble – and sometimes, disaster – because of a false understanding that they have the economic protections and rights of being married because they are “common law married,” without ever having done what they had to do to become married under Pennsylvania’s common law.

When you get a marriage license before you marry, you are creating a public record that makes it easy for anyone to verify the existence your marriage. It is now so simple for a marrying couple to get their license to marry, that common law marriage no longer serves a useful enough purpose to justify the problems it brings. Because of this I might never again have to tell a woman, who for two decades sacrificed everything to her relationship and her family, that the doors to family court are closed to her. I might not have to tell a man that he has to choose between fighting his employer’s benefits department over the cost of medical benefits he obtained for his former partner whom he thought (falsely) was his common-law-wife, or instead fighting his former partner’s claims for alimony and property division on the grounds that they are not married and never were.

That would be nice. I don’t just say goodbye to common law marriage, I say good riddance.

I live in Pennsylvania as part of a common law marriage from before 2005. How can my spouse and I protect ourselves?
The two of you should go to a Notary to sign at least two copies of a statement such as the one below:

Affidavit of Marriage under the Common Law of Pennsylvania

NOTICE: This document affirms a legal relationship. You are advised to seek legal counsel before signing it.

By signing below we, ________________________ and ________________________, hereby affirm that on the ______ day of _______________________, ____________, we exchanged words of present intent to marry in [city or town] ___________________________, [county] __________________________ County, Pennsylvania, each of us then being both unmarried and legally eligible to marry, and thereby we became husband and wife on that date by operation of the common law of the State of Pennsylvania. Each of us affirms that our marital relationship is not being asserted herein solely for the purpose of participation in benefit programs.

By signing below, we each verify this statement subject to the penalties of 18 Pa.C.S.A. Section 4904 relating to unsworn falsification to authorities, which provides for criminal penalties for the making of knowingly false statements.

________________________ ________________________

Sworn and subscribed to before me this ______ day of __________________, 20____.

__________________________________, Notary Public

It is always a good idea to create at least two “originals” so that each of you has one. Keep your copy in a secure location. Please note that using the above statement does not create a lawyer/client relationship between us, that I make no guarantee that the above-proposed statement will be honored by any particular governmental body, court, business or individual, and that by using it you are assuming the sole risk of any and all consequences arising from the use thereof.

Is there common law divorce in Pennsylvania?
There is no “common law divorce” in Pennsylvania. There never was. Members of separating couples who married under the common law of Pennsylvania and now seek to have their marriage dissolved have to file a formal divorce action with the Pennsylvania Court of Common Pleas, just like spouses in any other marriage.

If you need legal assistance with your divorce or family law matter in Southwestern Pennsylvania, call our family law practice to set up a personal consultation with a Pittsburgh divorce attorney. Please do not comment anonymously, and do not post anything that you consider confidential. We try to be responsive to commentary and questions, but know that posting here will not create an attorney/client relationship and that we will not offer legal advice via the Internet.

Child custody in Pennsylvania

November 8, 2013 · by Pittsburgh Family Law Services, P.C.

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Generally
Before a couple separates, there is no established “custody” of the children, and neither parent has more rights toward the children than the other. It is important for parents to realize that even if their romantic relationship is ending, their relationship as parents will continue as long as they live; they are stuck with each other, for good or ill. It can be extremely difficult to avoid letting the problems between the adults spill over into the parenting, but insulating children from those disputes is ultimately the best and most constructive thing to do. There is simply no substitute for two parents working together in the best interest of their children, and letting the children see their parents continuing to cooperate after they separate can ease their transition into the new situation, however it works out. Remember that no lawyer or judge can love your children the way you do, and no one is more qualified to decide what is best for children than their parents. Finding themselves in the middle of disputes between their parents is traumatic for children, even if it is sometimes unavoidable. Never forget that for children, particularly young children, you and the other parent are their world.

No matter how willing you are to keep adult issues between the adults, however, sometimes a parent is forced into dispute by the actions of the other parent. In that instance, the court is available to address the dispute and attempt to bring stability to the situation. Bear in mind, however, that not only can custody litigation be very expensive and personally difficult if matters do not resolve through settlement, it places the decision-making power into the hands of a judge who is likely to presume until proven otherwise that both of you are competent, capable parents who simply cannot agree about the welfare of your children. It is also true that custody litigation can sometimes be a necessary “wake up call” to an over-controlling parent whose actions are interfering with the other parent’s relationship with the children.

Custody rights are viewed in Pennsylvania as belonging to your children, rather than either to you or to the other parent. Should a custody matter be brought before a family court, that court will have only one consideration: the best interest of your children. It is important to realize that no court will care how hurt you might be over the situation, or how outraged you might be, or how much you miss your children; a judge will be deaf to all arguments based on those concerns, and will focus only on your children’s welfare.

Because the welfare of your children is at stake, it is often a good idea to be proactive about custody issues; that does not always mean using a court as a first resort, but it does mean trying to stabilize the situation and reach agreements, if possible, while getting as much information as you can to help you decide what to do in the event that no agreement can be reached. Your divorce and family law attorney can advise you not only about your options in court, but also about possible approaches to the situation (and to your co-parent) that may allow you to resolve your situation without litigation.

Court-ordered programs
Courts recognize that a judge makes a poor substitute for a child’s parents. When a parent files a custody dispute in most counties in Pennsylvania, both parents (and sometimes the children) will have to attend court-mandated dispute resolution programs. In Allegheny County, for example, the parents will have to participate in the Generations Program, consisting of an educational seminar, age-appropriate programs for children between the ages of 6 and 15, and a two-hour mediation session. Parents will sometimes also be ordered to participate in a “co-parenting counseling” program, in an effort to improve communication between them and to give them an opportunity to air and discuss grievances in a protected environment. These programs often do lead to settlements, so it is a good idea to go into them with an open mind, even if you are skeptical about how useful they are likely to be.

Physical custody and legal custody
There is a distinction in Pennsylvania between “physical” and “legal” custody of your children. Physical custody identifies which parent has the right to take the children from the other parent at a particular time. Legal custody identifies who has the right to be notified about matters affecting the children, who has access to information and records about them, who has the right to be consulted before decisions are made about them, etc. “Visitation,” as opposed to physical custody, is a much weaker relationship. There are rare occasions (usually involving violent behavior) in which a parent is limited to supervised visitation.

Many custody relationships between separated parents are based on one parent having primary physical custody, with the other parent having partial physical custody (such as every other weekend with time during weekday evenings, with arrangements for holidays and vacations), although the trend in Pennsylvania appears to be to maximize each parent’s involvement with the children in a shared physical custody arrangement, to the extent possible. Whatever the physical custody arrangement, both parents usually share joint legal custody in recognition that neither of them should be forced to become a part-time parent. Only in rare circumstances does a parent get an award of sole custody of a child.

There is no ‘magic age’ at which children get to decide for themselves between their parents. Judges often will talk to the children in a disputed custody situation, but will not automatically allow a child to select his or her own custody arrangement; instead, judges will take the entire situation into account, and will decide accordingly.

If you need legal assistance with your divorce or family law matter in Southwestern Pennsylvania, call me to set up a personal consultation. Please do not comment anonymously, and do not post anything that you consider confidential. We try to be responsive to commentary and questions, but know that posting here will not create an attorney/client relationship and that we will not offer legal advice via the Internet.

Do I need a prenuptial agreement in Pennsylvania?

November 8, 2013 · by Pittsburgh Family Law Services, P.C.

Pittsburgh Premarital Agreement Lawyer
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Hey, I’m getting married!
First of all, congratulations! Even an attorney with a divorce and family law practice can believe in good marriage, and in working to keep your marriage good.

Hoping and working for the best is essential, of course, but so is preparing against the worst. When you get into a car you fasten your seat-belt, because nobody gets to take precautions in the instant they actually need them.

You don’t expect that either of you will ever call it quits, any more than either of you would plan to get into a traffic accident. After all, you’re not in this to commit by halves. It doesn’t take much looking around, though, to recognize a sobering truth: some marriages end. Many marriages end. Change touches us all, and not always the way we would choose. Good, honest and caring people encounter challenges they cannot overcome, and end up separated in spite of their best intentions. You may already have faced divorce yourself, or perhaps your fiancée has been through it.

I believe in good marriage, but when that fails I also believe in good divorce. One way to “stack the deck” in favor of that goal is to enter into a prenuptial agreement with your future spouse, before you wed.

The hidden marriage vow.
There stands your true love on your wedding day, awaiting the ring that will seal your pledge. You stand before your family and friends and gaze into a pair of shining eyes, seeing your future and your fulfillment, and with all the love in your heart you speak the ancient words: “… to love, honor and cherish you, forsaking all others, and agreeing to the provisions of the Pennsylvania Divorce Code.”

Wait… what?

But that is exactly what happens when you get married in Pennsylvania. People often speak about “the marriage contract” without realizing that there really is such a thing. For those of us who live as married couples here in the Keystone State, the Pennsylvania Divorce Code tells us what is (and what is not) property that you will own together with your spouse. It tells you how property is to be divided in the event of a divorce (a process called Equitable Distribution). It tells us about spousal support, and what a court must consider when deciding who gets how much alimony, and for how long.

Depending on your situation and needs in the unfortunate event that you and your spouse should separate, the Pennsylvania Divorce Code might turn out to be your safety net, the wolf at your door, or anything in between. The one thing it isn’t, though, is something custom-fit to your personal circumstances and needs. The law allows for plenty of flexibility so that a family court judge has the power and guidance to offer you and your spouse economic justice, but even a flexible system remains one-size-fits-all… and you know that one size never really does. No judge knows better than the two of you, what is good for both of you. Entering into a prenuptial agreement before you marry gives you the chance to tell the judge how things will go in the event of a separation, rather than having him tell you.

Know the terms of your marriage contract beforehand.
If you ask a Pennsylvania family lawyer to talk to you about drafting an agreement in anticipation of your marriage, one of the first things he should do is to explain to you the workings of the Pennsylvania Divorce Code. That way, you understand what happens in the event that you separate and divorce without a prenuptial contract. Any of the default rules and standards of Pennsylvania that are not changed by your agreement will still apply to you and your spouse, so understanding how the Divorce Code works will help you make the most informed decisions at such an important time. Among other benefits, that conversation will help you decide whether you really do need a “prenup,” or whether instead you prefer to enter into married life without one. The key to choosing your risks successfully is to understand them, beforehand.

An experienced Pennsylvania family law attorney will also advise you how to conduct your financial affairs during your marriage, to make sure that you do not compromise your protections under the terms of the agreement.

What does a prenuptial agreement do in Pennsylvania?
A prenuptial agreement is a contract between you and your spouse-to-be that “customizes the defaults” of your upcoming marriage. To the extent that the terms of your agreement come into conflict with the terms of the Divorce Code, your agreement will have priority. It can protect particular assets or categories of property from distribution to a spouse, determine in advance what kind of alimony might apply under what kind of conditions (or eliminate it altogether), and decide in advance how marital property would be divided in the event of a divorce. Your premarital agreement can even protect property that you hope to obtain in the future, and protect you from debt that does not yet exist.

How long does a prenuptial agreement last?
A prenuptial agreement lasts as long as you both want it to. Like any other contract in Pennsylvania, the two of you can (for example) build a “self-destruct” into it if you reach a certain anniversary, or of another set of predetermined circumstances comes to pass. Of course, the two of you also can change your minds at a later time and agree to change or revoke all or part of the agreement. If the contract itself does not include termination conditions and the two of you fail to agree to revoke it, though, the agreement will remain in force indefinitely.

When drafting your prenup, it is important to take a long view. With prenuptial agreements especially, it is essential to understand that what seems advantageous today may not be so favorable thirty years from now, so careful consideration is as important as careful drafting. A good premarital contract should serve you equally well both next week, and next generation.

What makes a prenuptial agreement valid?
Full disclosure of assets and other personal economic information by each spouse-to-be is essential when reaching a premarital agreement, because getting caught hiding important information about what you own, owe and earn can lead to your agreement being determined invalid by a family law judge in divorce court.

It is also important to discuss entering into such an agreement well in advance of your wedding, so that your fiancée has time to consider and review its terms, and to seek the counsel of a divorce attorney. Raising the subject of a prenuptial agreement with your fiancée can be delicate enough, without adding the surprise of a “take it or leave it” proposition mere days before you go to the altar.

You and your spouse will want to sign your premarital contract in the presence of a Notary, and you should sign at least two “originals” so that there is one for each of you to keep in a safe, protected place.

Are prenuptial agreements enforceable in Pennsylvania?
They certainly are. Your premarital contract becomes effective on the day you marry your spouse, and they are difficult to challenge in Pennsylvania. The law gives such agreements great deference, in that the Pennsylvania Divorce Code places the burden of overturning a premarital agreement on the spouse who is making the claim that it should not be enforced. That spouse seeking to invalidate the prenuptial agreement, to succeed, must prove either that he or she did not sign the agreement voluntarily, or (1) that there was no reasonable disclosure of property or debt by the other spouse, (2) that he or she did not waive that disclosure, and (3) that he or she did not have enough knowledge of the other spouse’s property or debt to be able to make an informed decision.

Can the same family lawyer give legal advice to each of us?
Unfortunately, no. Even though the two of you are very much in love and plan to stay that way, for purposes of drafting your prenuptial agreement your lawyer must assume that the two of you will some day be on opposite sides of a divorce proceeding. Lawyers who want to keep their professional licenses avoid conflicts of interest, even when the conflict is only theoretical. If your fiancée wants legal advice and protection while drawing up the terms of your premarital contract, he or she will have to consult with a different lawyer.

How do I discuss a premarital agreement with my fiancée?
That’s always a good question, but a tough one for a lawyer to answer. You certainly know your fiancée better than any lawyer does, after all.

Nobody enjoys considering divorce while they are preparing for a wedding. It can be disheartening, to say the least, for your fiancée to hear you say (no matter what words you actually use), “I want you to agree that I am protected in case we should divorce, or the wedding is off.” So, first and foremost, you need to decide for yourself whether your desire for the protection of a contract is strong enough that you will not be able to feel secure in your marriage without one. Identifying “deal breakers” should always happen before the deal.

When raising the subject, be gentle, understanding and honest. Bring the matter up early, and certainly before you set a date and start spending money on your wedding. Explain to your fiancée that the agreement will be negotiated fairly between the two of you, and that it will offer protection to each of you. Point out that the best way to get out of trouble is not to get into it, and that your goal is to minimize or eliminate the prospect of fighting between you if your marriage does not succeed. Reassure your fiancée that you will hide nothing, that you will give him or her space to think and to get professional advice, and that you are open to his or her concerns and priorities. Encourage your fiancée to talk to a lawyer about how to stay protected, so that nobody needs to worry that unfair advantage is being taken. If it is your fiancée who is proposing the agreement, meet with a lawyer so that you and your fiancée can discuss your respective needs and concerns on a level playing field.

The best time to stop a fight is years before it starts. A well-drafted prenuptial agreement can let you and your spouse relax into your marriage, knowing that even should the road ahead narrow too much for you to be able to walk side-by-side, nevertheless it will not lead you into a battlefield.

May the two of you share a long and beautiful life together, and may your future be lawyer-free!

If you need legal assistance with your divorce or family law matter in Southwestern Pennsylvania, call us to set up a personal consultation. Please do not comment anonymously, and do not post anything that you consider confidential. We try to be responsive to commentary and questions, but know that posting here will not create an attorney/client relationship and that we will not offer legal advice via the Internet.

Divorce: some questions and answers

November 4, 2013 · by Pittsburgh Family Law Services, P.C.

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What is no-fault divorce?
In Pennsylvania, a “ground” for divorce is always needed to legally dissolve a marriage. Using a “no fault” ground for divorce just means that you don’t need to prove that there is a “good guy” and a “bad guy” to get your divorce decree. There are two “no fault” grounds for divorce in Pennsylvania: “Mutual Consent,” which requires that each spouse sign consent forms after a 90-day waiting period before the divorce process can conclude; and “Irretrievable Breakdown,” which requires at least a one-year separation (reduced from two years effective 12/5/16, with certain exceptions). You can use a no-fault ground even if you or your spouse did something wrong, and nothing about using a no-fault ground prevents a court from resolving disputes over support, property distribution or child custody. No-fault divorces are never “automatic,” even though a no-fault divorce can be a relatively uncomplicated process when both spouses agree.

What is fault divorce?
As with no-fault divorce, “fault” grounds for divorce are set forth in the Pennsylvania Code. Fault grounds include willful and malicious desertion without reasonable cause for a year or more, adultery, cruel and barbarous treatment which endangers the life or health of the other spouse, knowingly entering into a bigamous marriage, being sentenced to imprisonment for a term of two or more years upon conviction of having committed a crime, or offering such indignities to the other spouse so as to render that spouse’s condition intolerable and life burdensome. The spouse looking for a “fault” divorce has the burden of proving that the other spouse did wrong, and must also show himself or herself to be “innocent and injured.” Fault grounds for divorce are hardly ever used today, because no-fault divorce is generally less expensive and does not require the kind of extensive proof needed in a fault divorce proceeding. Nearly all divorces granted today are no-fault divorces, even when a spouse has “fault” grounds available. In my quarter-century as a Pittsburgh divorce lawyer, I have handled only three fault-ground divorces; and concerning the last of them, I learned that the judge’s staff was very excited about the case because the judge had never handled one at all!

What about annulment?
Annulment is only available in Pennsylvania for either “void” or “voidable” marriages. A marriage is void under the law if the marrying parties could not legally marry, for example if they are brother and sister. Examples of voidable marriages include “shotgun” weddings, or when one or both spouses were drunk at the time of the wedding. Annulment under the law is not to be confused with religious annulment, and obtaining one can be substantially more expensive than getting a divorce. Regretting a decision to marry, however short the marriage, does not by itself constitute grounds for annulment.

Will I have to appear in court?
The court system exists mainly to resolve disputes and to enforce agreements. In most Pennsylvania counties, if both spouses are in agreement regarding all aspects of the divorce proceeding, there is no need to appear in court. An annulment proceeding does require a court appearance.

What if we were married in another state or country?
It is not where you were married that matters, but where you and/or your spouse reside. If either you or your spouse has been a bona fide resident of Pennsylvania for the six months immediately prior to the filing of the Complaint in Divorce, Pennsylvania’s requirements are satisfied and you can file here no matter where you were married. You can still be considered a Pennsylvania resident if you are in the military services and have been stationed elsewhere, provided that you have maintained your status as a Pennsylvania resident.

How do I get a legal separation in Pennsylvania?
Some states require “legal separation” prior to divorce. In Pennsylvania, however, legal separation does not exist; you do not need to “get” a separation to commence living separate and apart from your spouse. Spouses can be considered separated when one of them notifies the other that the marriage is over, even if they continue to reside at the same address for a time. The date of separation can be important when determining what is and is not marital property for purposes of distribution, or when deciding which no-fault ground for divorce to use.

Can I date before I am divorced?
Once you and your spouse have made your final separation, neither of you has any expectation of the other’s fidelity that a Pennsylvania divorce court will recognize. Marital misconduct after the date of final separation (that does not involve violence) will not be considered by the court when making determinations of alimony or property distribution. Assuming that you exercise appropriate discretion around your children and have properly prepared for the effect a new relationship will have on them, child custody should not be affected. Actual cohabitation with a boyfriend or girlfriend (as opposed to mere dating) can cut off a right to spousal support or alimony, since cohabitation has the effect of forming a new household.

Can I claim alimony, property or debt contribution from my ex-spouse after I am divorced?
Divorce in Pennsylvania is intended to bring economic closure to the divorcing spouses, as well as personal closure. Unless you have protected your claims against your spouse with a written agreement, or you have filed a formal claim for economic relief with the family court prior to the award of a divorce decree (such as alimony or marital property distribution and allocation of marital debt), your rights to do so are probably lost forever. Please note that any claims relating to your children, whether for child support or child custody, are not affected by divorce; since these involve independent rights of your children, they cannot be lost.

Does my spouse have the right to live with me or enter my home?
The mere fact that you remain legally married gives your spouse no special rights to be near you, in your home, or to harass you. If you are living in a different residence from the one the two of you shared, and your spouse is not an owner or fellow renter, you can have your spouse removed by the police just like any other trespasser (or you can simply refuse to open the door). However, if you are not yet separated (even if your home is in your name alone), or your spouse is an owner or named renter of your residence, your spouse can probably come and go as he or she pleases. Even changing the locks might not help, since it is not illegal to break into one’s own property. Police generally will decline to remove a spouse from his or her marital home, no matter who owns the home. It is sadly common to have a “pressure cooker” situation in which neither party will budge from the house. Usually, changing the situation takes some sort of compromise, a willingness for someone to back down and leave, a lawsuit for “exclusive possession,” or the award of a Protection from Abuse Order.

Can my spouse throw me out?
If the two of you are still living together in your shared residence, the odds are that neither of you can throw the other one out, even if the residence is in the name of only one of you (either rented or owned). Police will generally not get involved in deciding who gets to live there and who has to leave, unless there is a violent situation. Although a family court has the power to award “exclusive possession” of your home in some circumstances, that process (if opposed) can take months. If you are looking to stay in the marital residence and your spouse wants you out, it is a very good idea to avoid expressions of frustration or anger which could be misinterpreted as a violent threat or a physical attack. Keep your voice down, keep your distance, keep your hands down (avoid gesticulating), and say nothing that could be interpreted as a physical threat. It is all too easy for something to occur between you that your spouse can either misinterpret or inflate out of proportion for the purpose of getting a Protection from Abuse Order. Even if you feel that you are being provoked to use violence, avoid doing so at all costs. There is never an excuse for initiating violence of any description as far as the Court is concerned, and such a thing is likely to come back to haunt you. Pushing, grabbing and the use of physical intimidation can be just as bad as punching. If you are worried that your spouse might try to get a Protection from Abuse Order against you, justified or otherwise, it is a good idea to make sure that you have a place you could go in a pinch, with at least some changes of clothing and personal items stored outside the house for easy access. If you, yourself are the victim of domestic violence or have been put in fear of imminent injury (by threats or gestures), you may be eligible for a Protection from Abuse Order.

If I leave, can my spouse “get me” for abandonment?
“Abandonment” for a period of a year or more is one of the “fault” grounds for divorce. However, you are not abandoning anyone if you have a good reason to leave, if you are asked to leave by your spouse, or if you agree with your spouse that you should leave. For your departure to qualify as abandonment, your spouse must be “innocent and injured,” and that is usually not the case. In any event, abandonment or other fault grounds for divorce have absolutely nothing to do with property and debt distribution rights, have only a limited role to play (if any) in alimony considerations, and generally do not affect child custody or support rights. If you are considering leaving without your children, it is a good idea either to have reached an agreement regarding custody and parenting of your children (your divorce and family lawyer can draft one for you), or to have initiated a custody process in court and asked for an interim custody arrangement; otherwise, you depend on your spouse’s goodwill to allow you to play your role as a parent. If you want your children to live with you primarily, you should know that leaving your children with your spouse can establish a status quo which can be very difficult to change later. If you take your children without your spouse’s consent, your spouse can file for custody and ask the children to be returned. It is always best to reach agreements with your spouse regarding custody and parenting of children prior to leaving, if possible.

I don’t know how to find my spouse. Can I still get divorced?
Under certain circumstances, yes. Ordinarily, after divorce papers are filed with the court, they must be served on your spouse by having him or her sign for them, by sending them certified mail, or by having someone deliver them personally. No divorce decree can be granted without proper service. If you have made a genuinely diligent effort to find your spouse (which can include searching the Internet, hiring an investigator, checking for mail forwarding instructions at the Post Office, contacting your spouse’s relatives or friends, and searching based on your spouse’s Social Security Number) and you have been separated more than two years, you can ask the court to grant permission for “alternative service.” A court can permit you to serve the divorce papers in an alternate way, perhaps on your spouse’s relative or by placing advertisements in newspapers. Once that is done, you can get a divorce decree based upon the Irretrievable Breakdown ground.

If you need legal assistance with your divorce or family law matter in Southwestern Pennsylvania, call our Pittsburgh family law office to set up a personal consultation with an experienced divorce lawyer. Please do not comment anonymously, and do not post anything that you consider confidential. We try to be responsive to commentary and questions, but know that posting here will not create an attorney/client relationship and that we will not offer legal advice via the Internet.

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