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The Process of Separation and Divorce |
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| It is really true that no two divorces are alike. What you have seen on television or heard from your friends will not necessarily apply to your situation. The following is a very general statement of what you are facing now that you have come to realize that you will be not be with your spouse. |
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The Initial Decision
Many clients have told us that the hardest part of the process is coming to the realization that a separation is in fact going to happen. Whether it is you or your spouse, or both of you, who has decided to separate or end your marriage, dealing with that decision can be extremely difficult. A big part of the reason for this is the fear of the unknown: |
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How much money will I have to live on? |
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Will I ever be as financially as well off as I am now? |
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And usually most importantly, how will we share our children, and minimize the impact of this on them? |
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| Meeting with an attorney experienced in matrimonial issues, preferably before the separation occurs, will give you answers to some of the basic questions you are sure to have, which in turn will address some of the fear of the unknown that you will undoubtedly be experiencing. We really do believe that knowledge is power, and that having unbiased, factual information to your questions is the best and most important service we can render to you, particularly in the early stages of the separation and divorce process. |
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Obtaining A Divorce
In Pennsylvania, there are two forms of divorce: fault and no-fault. Fault grounds (for example, adultery or indignities) are rarely used today in obtaining a divorce. The cost of establishing fault, and the length of time it takes to do so in the court system, make it ineffective to use. Contrary to what many people believe, there is no economic advantage to using fault grounds. However, there can be some circumstances where you and your lawyer would decide to use fault grounds; this should be discussed in the individual case. |
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| The most commonly used form of divorce is “no-fault.” There are two ways to obtain a “no-fault” divorce in Pennsylvania: |
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| (1) The parties can agree to the entry of a divorce decree at any time more than 90 days after the service of the divorce complaint. In that event, each party signs an “Affidavit of Consent”, which is a document stating that the marriage is irretrievably broken and that they agree to the entry of a Decree in Divorce. However, the court cannot require that someone sign an Affidavit of Consent, unless she or he is the person filing for the divorce (the plaintiff). Thus, if you are the defendant (the non-filing party), you do not have to sign an Affidavit of Consent if you do not wish to do so. |
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| (2) If the defendant does not wish to file an Affidavit of Consent, then the only other way to obtain a no-fault divorce is for the parties to be “separated” for two years. (See below for a discussion of what “separation” means.) At that time, a party can ask the court to enter a Decree in Divorce by stating that (a) the marriage is irretrievably broken and (b) the parties have lived separate and apart for two years. If the other spouse does not contest either of those statements, the Decree will be granted –even if the other spouse does not consent - provided that the party requesting the divorce demonstrates to the court that compelling circumstances exist to grant the divorce and sufficient economic protections are provided for the protection of the other party pending the final disposition of all claims raised in the divorce itself. This proof varies from case to case and should be discussed with your attorney. |
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| It is this two-year separation period that causes many people frustration in the divorce process. During the separation period, the parties generally cannot divide their assets, except by agreement. (The amendments to the Divorce Code which became effective in January 2005 give the court the specific authority to make a partial distribution or assignment of marital property at any stage of the proceedings. However, this can be done only by special application to the court, stating the reasons why it is desirable.) One cannot remarry during this period, because the parties are still married. Financial planning is difficult during this time. Issues such as selling the house or payment of bills can only be addressed by the court on an interim basis during this waiting period. In most instances, the court will elect to delay such things until it can divide the entire marital estate at the end of the two-year separation. Therefore, one party can be willing to get the divorce and divide the property, while the other party is not. In that event, the matter will simply sit dormant until the two-year separation period expires. |
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| This two-year separation period can be an important benefit to the economically dependent spouse, in that it gives that spouse the opportunity to obtain further education, reenter the work force, increase his or her income, and/or let the children get a bit older, before the marriage ends and the property and alimony issues are addressed. |
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What is “Separation”?
First, it is important to understand that there is no such thing in Pennsylvania as a “legal separation” or being “legally separated.” Some other states have such a status, but Pennsylvania does not. Whether or not you are considered “separated” in Pennsylvania is simply a matter of the facts of your case. Under Pennsylvania case law, you are considered to be “separated” if:
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You are physically separated (i.e., not living under the same roof) for reasons of marital discord; or |
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You have established a “separation” under the same roof by virtue of implementing a completely separate life in a variety of specific ways. If you are in this situation, you should discuss the particulars with your lawyer, as this type of separation is difficult to establish and prove. |
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Either party has filed and served a Complaint in Divorce (this is a rebuttable presumption, but it is strong evidence of separation); |
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| It is also important to know that neither party can make the other party leave the marital residence, except in the case of physical abuse. Emotional or mental abuse will not be a basis for a court to make a spouse leave (except in very extreme and rare circumstances). There is a claim for exclusive possession of the marital residence available under the Divorce Code but it is rarely granted when there has been no prior physical separation of the parties. Therefore, if you want to be physically separated from your spouse, you must either persuade him or her to leave, or you must leave. |
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| Of course, one option is for you to simply move out at your convenience. It is your legal right to take everything in the house that was purchased during marriage; however, this is often not a wise strategy, and there are many problems that can arise. You should discuss this in detail with your attorney in advance of moving out. |
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| People also inquire about taking money from any kind of account at or in advance of separation. If you have an account in joint names with your spouse, you are legally within your rights to remove all or any part of the assets of the account and put them in your own name. This will often be considered an advance to you in the distribution of property. Again, however, this move carries with it certain important risks, and you should discuss this in detail with your attorney before taking any action. |
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| To move out, with no notice, emptying the contents of the house and bank accounts, can set a tone that is not beneficial in the overall case. In an ideal world, you and your spouse would have a conversation about who is moving, when the move will occur, how furniture and personal possessions will be divided, how the bills will be paid after the separation, and how your incomes will be used for support of each other. We know well that this type of rational conversation is not always possible or desirable, and for this reason, this is another very important area for detailed discussion with an attorney. |
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Support Obligations
Once there is a separation, then the question of support arises. In virtually every instance, the party who earns more income will pay support for the spouse and all minor children living with that spouse. Support for the spouse continues until the divorce is granted and all of the economic issues are resolved. Child support ends when a child turns 18 or has graduated from high school, whichever occurs later. There is currently no provision for court ordered support of college students. However, child support for disabled children can continue later, even indefinitely. The term “alimony pendente lite” (often called APL) means support for a spouse during a separation when a divorce complaint has been filed. If you and your spouse cannot agree on an amount of APL, or spousal or child support, the court will make a determination based on each parties’ income or earning capacity and other factors. This process is governed by the Pennsylvania Support Guidelines and the cases interpreting them, and your attorney can explain how the Guidelines will work in your situation. |
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Custody
For most divorcing couples, the welfare of their children is their primary concern. In every divorce, the children will necessarily have a major adjustment to make, including the fact that they will now be living with their parents in two homes instead of one. Deciding how to share decision-making responsibility, and the children’s time with each parent, is probably the most important decision that parents–or the court–can make. |
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| There are two types of custody: |
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Legal Custody, which is the right to make major decisions concerning a child. These include principally decisions about religion, education, and medical issues. Legal custody can be shared, that is, both parents have an equal say in these issues; or sole, that is, one parent has sole authority to make these decisions. It is also possible to have sole legal custody for one type of decision (say, religion or where a child will attend school), and shared legal custody for everything else. |
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Physical Custody, which is how the children will divide their time between the two parents. In virtually every case, physical custody is “shared” or “joint”, meaning that both parents have time with the children. “Primary physical custody” is where one parent has the children for more than half of the overnights. “Partial custody” is where a parent has the child for less than half of the overnights. It is also possible to have exactly equal physical custody, although this is somewhat unusual. |
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Visitation means that a parent exercises custody of the child in the presence of the other parent or a substitute but does not have the right to remove the child from the custodial parent’s control. In some cases the court will order visitation supervised by a third party or agency who is expected to report to the court. It is only ordered by the court in rare circumstances where there is a danger (physically or emotionally) to the child from a parent. If you think it is warranted on your case, you should speak with your attorney. |
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| There are truly no “usual” or “normal” custody arrangements. How you arrange the children’s time with each of you is initially solely within your control, and can be affected by such things as how far you live from each other; the ages of the children; the children’s schedules (activities, lessons, homework, etc.); your schedules, including travel and job requirements; the degree to which you and your spouse can communicate productively about the children’s needs; the preferences of the children; and a myriad of other factors. Financial status (that is, who makes more money) almost never affects how custody is arranged. |
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| If you and spouse cannot agree on how to share decision-making and time with the children, the court will intercede to determine what the court–not you–believes is in the best interest of your children. There are many things the court will look at to decide this. Probably the most significant factor for a court is the status quo of where the children are living now. Assuming the children are doing well in that status quo, the person who wants to change that status quo has a burden to persuade the court that such a change, which in itself will disrupt the children’s lives further, is in the children’s best interests. There is no magic age at which the child’s preferences are followed; that is only one factor of many that the court will consider. Obviously, these determinations are very individual, and be assured that the court views each individual case in detail before making any decision. There are truly no predispositions based on gender or any other factor. Again, this is a matter that should be discussed in detail with an attorney experienced in matrimonial law. |
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Division of Property
After the initial issues at separation (usually support and custody) are addressed, the process then turns to a determination of the distribution of assets. With the exception of a partial distribution referred to above, this cannot happen until the parties agree to sign their Affidavits of Consent, or the two-year separation period runs. |
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| This process is called “equitable distribution of marital property.” Marital property is all property acquired between the date of the marriage and the date of separation, regardless of how it is titled (your sole name, spouse’s sole name, or joint names). There is one major exception to this rule: property that is acquired by gift to one spouse from someone outside of the marriage, by inheritance to one spouse or acquired in exchange for such property and not placed in joint names, is that person’s sole and separate property. Property that was acquired by one spouse prior to the marriage or acquired in exchange for such property and not placed in joint names remains that spouse’s sole and separate property. However, any increase in the value of these kinds of separate property between the date of marriage or date of the gift or inheritance until the date of separation or a date closest to the date of trial, whichever date results in the lowest increase, is marital property. |
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| The process of determining what is marital property and what is its proper value is a very important part of the divorce and equitable distribution process. There will be the need to obtain information from you, your spouse, financial institutions, employers and many other sources. The process is called “discovery.” It might be necessary to hire some sort of expert to value an asset, such as your home, retirement benefits, or interest in a business. The length of time necessary to obtain all of this information varies based on many factors, including the complexity of the assets, the degree of cooperation from the other spouse, and other issues. This too is something that needs to be discussed in detail with an attorney. |
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| Once the marital estate is identified and valued, then the process of negotiating a settlement begins. This is a determination of what percentage or share of the marital estate goes to each party, and how particular assets will be allocated or divided. It is important to note that “equitable distribution” does not mean “equal” distribution. Sometimes the marital estate is equally divided, but usually it is not. The split depends on an analysis of a list of factors set out in the Divorce Code. Under the 2005 Amendments to the Divorce Code, the court may even apply a different percentage to each asset or group of assets. This is an area that your attorney will discuss in detail with you, as obviously these factors vary significantly from case to case, and an individual review of your particular situation is critical. |
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| Sometimes, the parties try to negotiate these issues between themselves and the attorneys simply assist in putting the general terms into specific language, and offering advice as needed. In other instances, the parties decide to have the negotiations conducted between the attorneys. Most cases are settled before the matter comes to trial, and if that happens, a detailed, written Marriage Settlement Agreement is prepared and signed. |
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| But if the parties cannot agree, the matter will be tried before the court. Again, this cannot happen until either the parties sign their Affidavits of Consent, or the two-year separation period has run. Once one of these things occurs, then a number of steps are taken to prepare the case for trial, including meeting with the judge informally, doing discovery, and preparing witnesses. In many counties, some equitable distribution trials are conducted before a Master, and only heard by a judge if one or both parties object to the Master’s recommendation. This entire process, through trial, can take up to a year or more after it is begun. |
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Alimony and Counsel Fees
In addition to equitable distribution of marital property, the issues of alimony and counsel fees are addressed. Alimony is support payments made to a former spouse after a divorce. Alimony is not awarded in every case, and its amount and duration (if any) are governed by another list of factors set out in the Divorce Code. The support guidelines do not apply to alimony. A party is also permitted to request that his or her counsel fees and expenses be paid, in whole or in part, by the other spouse. Again, counsel fees and expenses are not awarded in every case, and in fact, are often not awarded at all. |
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McCarthy McDonald Schulberg & Joy
Our firm concentrates its practice in the area of family law, and that is all we do. We hope that the information in this section will help in giving you some general information about the process of divorce, and your rights and obligations. We also hope that it will help you in formulating questions that you can raise when you meet with your attorney. All of our attorneys have had a great deal of experience with virtually every issue that can come up in a family law case. We are also very aware of the emotional aspects of these situations, which often affect your decision-making process. We view our job as giving you the very best, candid, factual advice that we can, bringing our experience and judgment to the table, so that you can make informed, sound decisions about your future and that of your children. |
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