Divorces in Pennsylvania

Fault Divorces

Like many jurisdictions in the United States, Pennsylvania is a "No-fault" divorce state. This is not to suggest fault divorces are not viable options under Pennsylvania's Divorce Code. To the contrary, the Divorce Code continues the availability of fault divorces. §3301(a)(1)-(6) of the Divorce Code enumerates the grounds for a fault divorce. Below is the section of the Divorce Code relative to fault divorces in Pennsylvania.

The use of fault divorces has been significantly reduced since Pennsylvania adopted no fault grounds for divorce. Primarily this reduction is due in large part in the additional costs associated with litigating a fault divorce. Quite simply, a party asserting a fault must prove the fault in a hearing. The time necessary to prepare for and litigate a fault is expense and often outweighs the benefit. But like any other situation in a divorce action, each case is different and requires a careful examination of the facts relative to the law.

§ 3301. Grounds for divorce

(a) FAULT.-- The court may grant a divorce to the innocent and injured spouse whenever it is judged that the other spouse has:

(1) Committed willful and malicious desertion, and absence from the habitation of the injured and innocent spouse, without a reasonable cause, for the period of one or more years.

(2) Committed adultery.

(3) By cruel and barbarous treatment, endangered the life or health of the injured and innocent spouse.

(4) Knowingly entered into a bigamous marriage while a former marriage is still subsisting.

(5) Been sentenced to imprisonment for a term of two or more years upon conviction of having committed a crime.

(6) Offered such indignities to the innocent and injured spouse as to render that spouse's condition intolerable and life burdensome.

No Fault Divorces

With adoption of the Divorce Code, Pennsylvania legislature created no fault divorces. As the name suggests, under this section of the Divorce Code past conduct of the parties is irrelevant to obtaining a divorce. The statutory requirements for obtaining a no fault divorce is the marriage is: (1) irretrievably broken; and (2) the parties have been separated more than two (2) years. Meeting the first prong of the statutory requirement generally is a given as one or both parties are requesting a divorce; however, there are exceptions. It is usually the second requirement, 2-year separation, which is the focus of inquiries.

As stated, in order for the statutory requirements to be met two (2) years must pass since date of separation. Under §3301(c), the parties agree to a mutual consent divorce and the issue of length of separation is moot. Nevertheless, the statute still mandates a ninety (90) day period to pass since service of the divorce complaint prior to issuing a decree in divorce.

Well, what happens if one party does not consent to the entry of a divorce decree? The Divorce Code accounts for this scenario, as well. Under §3301(d), the court is empowered to issue a divorce decree where one party avers the marriage is "irretrievably broken" and the parties have been separated two (2) years. Sounds easy...Unfortunately, it is not just that simple unless you own nothing of value and owe no one money. If the parties have acquired marital assets (i.e. house, cars, pensions) and debts (i.e. mortgages, car payments, and credit card), those assets and debts still must be distributed by the court. It is however possible to obtain a divorce decree and resolve or litigate the economic claims at a later date. This process is called "bifurcation," which we will discuss below.

§ 3301. Grounds for divorce

(c) MUTUAL CONSENT.-- The court may grant a divorce where it is alleged that the marriage is irretrievably broken and 90 days have elapsed from the date of commencement of an action under this part and an affidavit has been filed by each of the parties evidencing that each of the parties consents to the divorce.

(d) IRRETRIEVABLE BREAKDOWN.--

(1) The court may grant a divorce where a complaint has been filed alleging that the marriage is irretrievably broken and an affidavit has been filed alleging that the parties have lived separate and apart for a period of at least two years and that the marriage is irretrievably broken and the defendant either:

(i) Does not deny the allegations set forth in the affidavit.

(ii) Denies one or more of the allegations set forth in the affidavit but, after notice and hearing, the court determines that the parties have lived separate and apart for a period of at least two years and that the marriage is irretrievably broken.

(2) If a hearing has been held pursuant to paragraph (1)(ii) and the court determines that there is a reasonable prospect of reconciliation, then the court shall continue the matter for a period not less than 90 days nor more than 120 days unless the parties agree to a period in excess of 120 days. During this period, the court shall require counseling as provided in section 3302 (relating to counseling). If the parties have not reconciled at the expiration of the time period and one party states under oath that the marriage is irretrievably broken, the court shall determine whether the marriage is irretrievably broken. If the court determines that the marriage is irretrievably broken, the court shall grant the divorce. Otherwise, the court shall deny the divorce.

Bifurcation

As noted above, Bifurcation is the process of splitting the divorce from the remaining economic claims raised by the parties. Bifurcation has recently become more difficult to obtain since the legislature amended the Divorce Code in 2005. This change in the Divorce Code was due in large part to legislators and judges who believed bifurcated divorces encouraged litigation over the remaining economics claims as once the party seeking the bifurcation obtained the divorce decree he or she would be non-responsive to settlement negotiations. Nevertheless, the option to pursue the bifurcation remains available and should be pursued if compelling circumstances warrant. The relevant portion of the Divorce Code follows.

§ 3323. Decree of court

(C.1) BIFURCATION.-- With the consent of both parties, the court may enter a decree of divorce or annulment prior to the final determination and disposition of the matters provided for in subsection (b). In the absence of the consent of both parties, the court may enter a decree of divorce or annulment prior to the final determination and disposition of the matters provided for in subsection (b) if:

(1) grounds have been established as provided in subsection (g); and

(2) the moving party has demonstrated that:

(i) compelling circumstances exist for the entry of the decree of divorce or annulment; and

(ii) sufficient economic protections have been provided for the other party during the pendency of the disposition of the matters provided for in subsection (b).

(g) GROUNDS ESTABLISHED.-- For purposes of subsections (c.1) and (d.1), grounds are established as follows:

(1) In the case of an action for divorce under section 3301(a) or (b) (relating to grounds for divorce), the court adopts a report of the master or makes its own findings that grounds for divorce exist.

(2) In the case of an action for divorce under section 3301(c), both parties have filed affidavits of consent.

(3) In the case of an action for divorce under section 3301(d), an affidavit has been filed and no counter-affidavit has been filed or, if a counter-affidavit has been filed denying the affidavit's averments, the court determines that the marriage is irretrievably broken and the parties have lived separate and apart for at least two years at the time of the filing of the affidavit.

Equitable Distribution of the Marital Estate

Part and parcel to most divorces is the distribution of the marital estate. The marital estate is comprised up of marital assets and debts. This marital property is defined in the Divorce Code as "all property acquired by either party during the marriage and the increase in value of any nonmarital property." The nonmarital property referred to in the definition includes the increases in value of premarital property and gifts received during the marriage. Please note it is not the value of the premarital property or the gift, but only the increase in value from the date of marriage or receipt of the gift through date-of-separation.

Also, excluded from the definition of marital property is "property excluded by valid agreement of the parties entered into before, during or after the marriage." Most of us know these types of agreements as prenuptial, antenuptial, or postnuptial agreements. For more information on these agreements, please refer to the page specifically dealing with agreements.

As most of us acquire "stuff" during our marriage, when the marriage is ending often parties are unable to fairly distribute their own property. I guess this is no great surprise since it requires significant amount of trust and communication to work through these issues and once parties have reached the point of a divorce, trust and communication have long since been abandoned. The primary role of an attorney in equitable distribution in my mind is to identify, value, and develop a scheme of distribution of the marital estate. As you can see from the definition of marital assets, it is not patently clear to many people what exactly is a marital asset. And, often one or both parties have been preparing for an eventual separation and divorce for many months or years and during this period have hidden assets from their spouse. Another hat a practicing matrimonial attorney wears is that of a private investigator looking for those potentially hidden assets. Fortunately, the hidden asset scenario is not one which is played out very often in divorce cases. Many spouses, especially the dependent spouse, raise concerns about money being stashed away with their spouse¿s paramour or in a shoebox, but in reality this is rarely the case. Nevertheless, it is a possibility that should be explored.

Once assets are identified as marital or nonmarital, the next step is value those assets. This part of the process may require the use of experts such as forensic accounts, real estate appraisers, actuaries and business valuators to name a few. As many assets are complex in nature (i.e. pensions and businesses) expert testimony may be required to establish a value for purposes of a trial and/or settlement negotiations.

Last in this process of equitable distribution is the scheme of distribution. Unlike some states, especially the western states (California, Washington, Arizona), Pennsylvania is an equitable distribution state. A community property state is one in which each spouse is generally entitled to one-half of the marital estate or property. An equitable distribution state permits distribution of the marital estate in any many equitable to the specific facts of the case. Rarely are distribution of the marital estate greater than 60/40, but on occasion courts have skewed the distribution in a greater portion to an economically disadvantage spouse.

In order to distribute property in Pennsylvania, the legislature has mandated the courts consider certain factors in determining the scheme of distribution. §3502(a) of the Divorce Code enumerates the eleven (11) (actually thirteen (13)) factors the court must consider. No one factor is weighted heavier than another, but certainly the court has discretion to weigh each factor in the manner it deems appropriate. One factor may be noticeably absent: marital fault. Despite the desire of many innocent and injured spouses to interject certain evidence into an equitable distribution hearing, adultery, cruel and barbarous treatment, indignities along with the other fault divorce grounds are not a part of the consideration of the court in a distribution of marital assets. Of course, these faults could be a part of another economic claim (see the Alimony page).

§ 3502. Equitable division of marital property

(a) GENERAL RULE.-- Upon the request of either party in an action for divorce or annulment, the court shall equitably divide, distribute or assign, in kind or otherwise, the marital property between the parties without regard to marital misconduct in such percentages and in such manner as the court deems just after considering all relevant factors. The court may consider each marital asset or group of assets independently and apply a different percentage to each marital asset or group of assets. Factors which are relevant to the equitable division of marital property include the following:

(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 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.

Also, in reaching its equitable distribution award, "the court may consider each marital asset or group of assets independently and apply a different percentage to each marital asset or group of assets" as noted in §3502(a) of the Divorce Code. In other words, the court can award fifty percent (50%) of a pension to the dependent spouse, but sixty percent (60%) of the equity in the marital residence.

What can I do for you in your divorce?

First, no matrimonial attorney is a miracle worker. I am only as good as the information provided to me by my client, their spouse and opposing counsel. In my years of practicing family law, which constitutes nearly ninety-five percent (95%) of my practice, I have represented clients with multi-million dollar marital estates, which included businesses, significant investment portfolios and substantial tangible personal property. In addition, most of my clients are hard working middle income people with far fewer issues to resolve. In both cases, and all others in between, I strive for a level of professionalism in reaching out to access information relative to the marital estate and other divorce issues. I diligently pursue the discovery process searching for answers. Our goal in the end is to ensure you, the client, has received the best possible resolution of your divorce.