Divorce

On what grounds can I get a divorce?

Most divorces are granted on “no fault” grounds.  If both spouses agree, they can sign affidavits to consent to a divorce decree 90 days after the defendant is served with the complaint.  If the defendant does not consent to a divorce but the spouses have lived separately for over one year, a divorce decree can be issued without that spouse’s consent.  In either case, it must be claimed that the marriage is “irretrievably broken” and that monetary and other property claims are either settled or waived.

Courts can also grant divorces in two other instances:

  • The spouse seeking divorce is “innocent and injured” by one of the following faults of the other spouse:
    1. Willful and malicious desertion for over one year
    2. Adultery
    3. Cruel and barbarous treatment endangering the spouse’s safety
    4. Bigamy
    5. Imprisonment for two or more years
    6. Committing burdensome and intolerable “indignities”
  • Ongoing mental health institutionalization of at least 18 months, with no prospect of discharge

Can I receive alimony or support?

A court can order the spouse who earns more to pay the other spouse alimony or spousal support.  Spousal support is received while the spouses are separated and until a divorce decree, and alimony may be ordered when a divorce decree is entered in a lump sum or installments, considering the following about the spouses:

  • Earnings
  • Physical, mental and emotional conditions
  • Their sources of income, including retirement and medical benefits
  • Inheritances
  • Duration of the marriage
  • One spouse contributing to the other’s education, training or increased earnings
  • Who had custody of the children
  • Standard of living during the marriage
  • Education of each spouse
  • Assets and liabilities
  • Property brought into the marriage
  • One spouse being a homemaker
  • Needs of each spouse
  • Marital misconduct, including abuse or adultery
  • Tax ramifications of alimony
  • Whether spouse seeking alimony lacks sufficient property to provide for reasonable needs
  • Whether spouse seeking alimony cannot support self through work

How do my spouse and I divide money and property?

Money and property may be and often is evenly divided, but that is not required or presumed in Pennsylvania.  Instead, Pennsylvania law requires “equitable distribution,” where each spouse receives a percentage of the money and property based upon the following factors but, unlike alimony, they do not include marital misconduct:

  • The length of the marriage
  • The standard of living during the marriage
  • Whether a spouse is primary custodian of the children
  • Any prior marriages
  • Age, health, income, employability, estate and liabilities
  • Sources of income, including retirement
  • One spouse contributing to the other’s education, training or increased earnings
  • Each spouse’s contribution to the property, including as a homemaker
  • The value of property divided to each spouse
  • The economic circumstances of each spouse when money and property is divided
  • Tax ramifications or expenses for sale of property

What are my rights if we co-own a house?

Residences are marital property that can be divided by sharing the proceeds of a sale or granting it to one spouse in exchange for money or property to the other spouse.  The court can award possession of the house to one spouse while the divorce is pending and as part of its final order.  NOTE: A house that is co-owned should be addressed by agreement or court order prior to the issuance of a divorce decree; if not, the spouses become co-owners and can no longer address it in the divorce.  Instead, it becomes a real estate matter in civil court, which is not recommended, as it results in additional time and expense.

Can my spouse and I write our own agreement?

Yes, but that is not recommended, because written agreements signed by both spouses are generally considered enforceable contracts, and contracts should be drafted by attorneys where possible. If you are considering signing an agreement, make sure that you understand all of its terms before signing.  Additionally, agreements by electronic messaging may be enforced or used as evidence in court.

Does Pennsylvania have “common law” marriages?

No.  Pennsylvania used to recognize marriages in common law, where people lived together for an extended period of time and held themselves out as spouses; however, the law has changed, and spouses must be legally married by a judicial, governmental or religious officiant.

Is there “legal separation” in Pennsylvania?

No.  Complaints in divorce are the only legal actions recognized here; however, the date of separation is an important date for several reasons, including receiving child and spousal support, distributing money and property and obtaining a decree over the other spouse’s objection.  Therefore, you should determine the date that you separated from your spouse prior to filing a for the divorce or support action.

Does Pennsylvania allow for annulments of marriages?

Yes, but they are rare.  Marriages are automatically annulled where one spouse has committed bigamy, i.e., already being married without obtaining a divorce; or where one spouse was not capable of getting married due to a serious mental disorder.  Courts may also void marriages by way of annulment in marriages involving minors, intoxication, fraud, duress, coercion or force.

How can legal aid help?

We will obtain a divorce decree for clients who do not need the court to divide money or property.  If needed, however, Legal Aid will draft settlement agreements regarding money and property for the spouses.

What is my county court process?

Fayette County: Complaints in divorce are filed at the Prothonotary at the courthouse.  You may file a request for the appointment of a Master to hear money or property claims with the Prothonotary, which will then be presented to the Court Administrator.  For local rules, go to www.co.fayette.pa.us.

Greene County: Complaints in divorce and requests for the appointment of a Master to hear money or property claims are filed at the Prothonotary at the courthouse.  For local rules, go to www.co.greene.pa.us.

Somerset County: Complaints in divorce and requests for the appointment of a Master to hear money or property claims are filed at the Prothonotary at the courthouse.  For local rules, go to www.co.somerset.pa.us.

Washington County: Complaints in divorce are filed with the Prothonotary at the courthouse, and requests for appointment of a Master to hear money or property claims are presented to the Family Court Judge.  The Court Administrator’s divorce office must receive copies of all filings.  For local rules, go to www.washingtoncourts.us.

The divorce law is found at 23 Pa.C.S. Chapter 33.  For more online information, go to www.palawhelp.org.