Divorce in Pennsylvania: The Legal Process, Your Rights, and What to Expect

By Karen Ulmer Pendergast

Providing accurate and objective information to help make the right decisions during a divorce in Pennsylvania, this guide provides answers to 360 queries such as: How quickly can one get a divorce? Who decides who gets the cars, the pets, and the house? What actions might influence child custody? How are bills divided and paid during the divorce? How much will a divorce cost? and Will a spouse have to pay some or all attorney fees? Structured in a question-and-answer format, this handbook provides clear responses to help build confidence and give the peace of mind needed to meet the challenges of a divorce proceeding.

• Language: English
• Publisher: Independent Publishers Group
• Release date: Jun 30, 2020
• ISBN: 9781943886913

Book preview

regrets.

Introduction

Every day I meet men and women who struggle with how to accept a divorce they did not want or with the decision on whether to divorce. Relationships are difficult and marriage is no exception. When faced with divorce, it can feel so overwhelming. You may have small children together who still need to be raised. You may be a stay-at-home parent with no income or job experience. You may have no family in the area to support you. Your spouse may have all the assets in their name only. Your entire life may have revolved around this one person who will no longer be there. You worry that everything you have saved and worked so hard for will be gone either to your spouse or to legal fees. You worry how the divorce is going to affect your children.

My purpose in writing Divorce in Pennsylvania is to help you navigate through this unstable and uncertain time in your life and to educate you on what to expect and reassure you tha you can and will get through this.

Divorce is hard, whether you are the one leaving the marriage or the one who was left unexpectedly, or even when a divorce was mutually decided. Divorce in Pennsylvania was written to help you move through this time of transition with more clarity and ease. It is not intended to be a substitute for advice from your lawyer. It is intended as a resource to help answer some of the questions you have or did not even think to ask your lawyer. It is to help you prepare so you have fewer regrets when making agreements or decisions.

In writing Divorce in Pennsylvania, it is my hope that you will find valuable information that you will use to help you through this difficult time. The more you understand about the process and what to expect, the better you are able to make sound decisions regarding very challenging choices. I hope you will use this book as a guide to ask your lawyer questions, to consider things you will need to do during the process or afterward, and to help you move through the process with an understanding and appreciation for those who will provide you with support.

I hope that you refer to this book as you are going through the divorce process. If you find that it is helpful to you, I hope that you share this resource with others who face similar circumstances.

You may feel lost, alone, or scared but know that these feelings are temporary. You will get through your divorce and there will be a day that you will look back on your divorce and be thankful for the life lessons it provided you, whether you became a better parent spending more time with your children, became more confident in your own skills and abilities, or you learned to make better choices. It is my hope that this book is a comfort to you during this difficult time and helps you through this process with more confidence.

Karen Ulmer Pendergast

1

Understanding the Divorce Process

At a time when your life can feel like it’s in utter chaos, sometimes the smallest bit of predictability can bring a sense of comfort. The outcome of many aspects of your divorce may be unknown, increasing your fear and anxiety. But there is one part of your divorce that does have some measure of predictability and that is the divorce process itself.

Most divorces proceed in a step-by-step manner. Despite the uniqueness of your divorce, you can generally count on one phase of your divorce following the next. Sometimes just realizing you are completing stages and moving forward with your divorce can reassure you that it won’t go on forever.

Develop a basic understanding of the divorce process. This will lower your anxiety when your attorney starts talking about depositions or going to trial, and you feel your heart start pounding in fear. It can reduce your frustration about the length of the process because you understand why each step is needed. It will support you to begin preparing for what comes next. Most importantly, understanding the divorce process will make your experience of the entire divorce easier. Who wouldn’t prefer that?

1.1 Must I have an attorney to get a divorce in Pennsylvania?

You are not required to have an attorney to obtain a divorce in Pennsylvania. However, if your case involves children, alimony, significant property, or debts, you should avoid proceeding on your own.

If your divorce does not involve any of these issues and you are considering proceeding on your own, contact the clerk of the court in Philadelphia to request documents and instructions that are helpful in the simplest of cases. Call your local courthouse to see whether there is a self-help desk available to provide assistance. Be forewarned, however, that even in the simplest of cases, there are very specific forms and requirements and time deadlines that may prove challenging to navigate without a lawyer. A person who proceeds in a legal matter without a lawyer is referred to as being pro se, on one’s own.

If you are considering proceeding without an attorney, at a minimum have an initial consultation with an attorney to discuss your rights and duties under the law. You may have certain rights or obligations you are unaware of. Many attorneys offer a free consultation or at a reduced fee. Meeting with a lawyer can help you decide whether to proceed on your own.

1.2 What is my first step?

Find a law firm that handles divorces as a regular part of its law practice. The best recommendations come from people who have knowledge of a lawyer’s experience and reputation.

Even if you are not ready to file for divorce, call to schedule an appointment right away to obtain information about protecting yourself and your children. Even if you are not planning to file for divorce, your spouse might be.

Ask what documents you should take to your initial consultation. Make a list of your questions to bring to your first meeting. Start making plans for how you will pay your attorney to begin work on your case.

1.3 What are the steps taken in a divorce action?

The divorce process in Pennsylvania typically involves the following steps.

If you are initiating the divorce:

Obtain the name of an attorney online, from friends, or from other referral sources.

Schedule an appointment with an attorney.

Prepare any questions you may have for an initial consultation.

Meet for an initial consultation with an attorney.

Pay the attorney a retainer and sign a retainer agreement when you are ready to begin the process. If you do not have the funds, you may wish to consult with family or you may want to check your credit to ensure you have sufficient funds on a credit card for the retainer.

Provide requested information and documents to your attorney.

Take other actions as advised by your attorney, such as opening or closing financial accounts.

Attorney prepares the divorce complaint for your review and signature.

Attorney files the complaint with the clerk of the courts. The court requires a filing fee and you should be prepared to pay the fee if you are the person bringing the action.

Attorney serves the complaint on the defendant, usually by certified mail, although in-person service or acceptance of service by the defendant are other means of service.

If interim relief (such as temporary child support, spousal support, or attorney fees) is appropriate, attorney prepares motion papers for your review and signature, files with the court, obtains a court date, and serves pleadings on defendant.

If you have been served with divorce papers:

Obtain a referral for a lawyer or search online for an attorney dedicated to divorce.

Schedule an appointment with an attorney.

Prepare questions and gather necessary documents for an initial consultation. Bring all paperwork you received with you as well as the date received.

Meet for an initial consultation with an attorney.

Pay the attorney a retainer and sign a retainer agreement. If you do not have the funds yourself, you may want to ask for help from family or see if you have sufficient credit on a credit card.

Provide requested information and documents to your attorney.

Take other actions as advised by your attorney, such as opening or closing financial accounts.

Attorney prepares an answer to the complaint for your review and signature and possibly a counterclaim if there are new issues to raise such as alimony. In some instances and counties a filing fee will be required to file the answer payable to the court.

Attorney files your answer with the clerk of the court within thirty days of service of the complaint on you.

If you are served with requests for interim relief, attorney prepares your response to these moving papers if a response is required.

If you receive any court dates in the mail, notify your attorney of the dates.

After an action has been commenced and the response filed:

With the assistance of your attorney, you need to prepare financial disclosure documents (income and expense declaration and preliminary schedule of assets and debts).

Negotiations begin regarding temporary custody and visitation, child and spousal support, payment of expenses once someone is no longer living in the house.

Attorney prepares moving papers for any requests for temporary relief not previously made, usually with respect to custody and support.

If there are minor children, the parties comply with any local rules or court orders to attend parent orientation and to participate in mandatory mediation. This varies by county and is not required in all counties so you need to be familiar with your local county procedure.

Court holds a custody conference before holding a hearing. Support conferences are held separately on a different day and time and some counties will hold several lower-level proceedings before going to a hearing before a judge.

Either the parties reach an agreement or the court issues temporary orders.

Both sides conduct discovery—the process designed to obtain information regarding all relevant facts and commence the process to exchange valuations of all assets, including expert opinions if needed. Discovery is typically in the form of interrogatories and production requests, though other means of discovery are permitted including depositions.

You confer with your attorney to review facts, identify issues, assess strengths and weaknesses of the case, review strategy, and develop a settlement proposal.

Spouses, with the support of their attorneys, attempt to reach agreement through written proposals, mediation, settlement conferences, or other forms of negotiation.

If you reach an agreement on all issues, then:

One attorney prepares marital settlement agreement that the other attorney will review.

Both parties and their attorneys sign agreement and all necessary paperwork.

Both parties may consent to the divorce after ninety days of being served with the divorce complaint, at which time the agreement can then be filed together with paperwork for the final decree assuming both parties waived notice of the decree.

Court appearance is not required in Pennsylvania for a divorce if you reach agreement.

Divorce requires agreement only on division of assets and alimony. If you cannot agree on custody and child support you can still do a divorce by agreement and custody and child support will be heard separately.

Your attorney completes necessary orders and supervises the property transfer until all agreed terms are satisfied. Just because the divorce was entered does not mean that your involvement with your attorney has ended. Until all terms are completed, your attorney will still be overseeing the process, unless otherwise agreed.

If you are unable to reach an agreement on all issues, then:

Your attorney completes all necessary discovery to bring the case to its trial-ready point, the first step being a master’s hearing. A master’s hearing is a preliminary hearing prior to a hearing before a judge. (A master is usually an attorney hired by the court to hear divorce matters.) Masters normally conduct the hearing around a table versus in a courtroom setting and make recommendations that are adopted as an order if neither party appeals the master’s finding or takes exceptions. The meetings are formal in the sense that they are a court proceeding and required documentation must be presented, such as a brief with supporting documentation of all debts, assets, income, and expenses. Not all cases will go to a judge as most cases settle with the master’s imput and recommendations.

You must first have grounds for divorce before you can proceed to a master’s hearing. In order to get grounds for divorce under a no-fault case, you must either have both consented no sooner than ninety days after a divorce was served or you have been separated a year since December 4, 2016. If you separated before December 4, 2016 then you must have been separated at least two years to get grounds for divorce. There are also fault grounds for divorce that are rarely entered.

After grounds are entered, your attorney serves your income and expense, inventory and appraisement, income tax returns, and pay stubs on the other party if not done earlier.

Your attorney then prepares and files an application for a master’s hearing and pays the applicable filing fee, if any, in your county and a prehearing statement which is a comprehensive legal document with documentation attached supporting all your claims for relief in divorce.

If agreement has been reached on any issues, your attorney prepares a stipulation on those issues. All other issues are scheduled before the master.

You work with your attorney to update your prehearing statement with any additional documentation that may be needed.

You meet with your attorney for final preparation.

Master’s hearing is held.

If an agreement is reached based on the master’s oral recommendation, then a court reporter records the agreement. A divorce decree may then follow if there is no reason the parties decide to delay the decree.

If the parties do not reach an agreement, a master will issue a written recommendation after reviewing all the submissions and provide notice to counsel for the parties.

The parties review the master’s decision with their counsel and if no one objects, the decision becomes final and is adopted as your final divorce order. A deadline to respond will be set in the decision.

If either party disagrees with the master’s decision, they may file for a trial de nova that will then prompt a hearing in front of a judge. A trial de nova means that the judge will hear the evidence as if hearing it for the first time.

The judge will then hold an evidentiary hearing. Stipulations may be entered on agreed terms. The judge will, after hearing the evidence, enter an order on distribution of property and alimony. This order will be final but may be appealed within thirty days to the Superior Court. Most cases are not appealed and this will be your final order.

The attorneys supervise any property transfers until all agreed terms are satisfied.

Your posttrial rights are discussed in chapter 16, on appeals.

1.4 Is Pennsylvania a no-fault state, or do I need grounds for a divorce?

Pennsylvania, like most states, is a no-fault divorce state. This means that neither you nor your spouse is required to prove that the other is at fault in order to be granted a divorce. Factors such as infidelity, cruelty, or abandonment are not necessary to receive a divorce in Pennsylvania. Rather, it is necessary to prove that the marriage is irretrievably broken to have it dissolved.

In Pennsylvania there are two types of no-fault divorces. The first type is when both parties will consent to the divorce by signing an affidavit of consent that the marriage is irretrievably broken. The earliest this consent can be signed is ninety days after the divorce was filed and served on the other party. This is considered a cooling-off period so that both parties have contemplated the finality of divorce and do not rush into a divorce. These consents can be signed at any time after ninety days, but if a long enough period passes and one party does not consent then Pennsylvania has a no-fault remedy for those situations as well that will require a certain period of time to have passed.

The second type of no-fault divorce in Pennsylvania is based on the passage of time. For parties who separated prior to December 4, 2016, the parties will have to have been separated for two years in order to obtain grounds for divorce under this no-fault grounds. A document called an affidavit of separation will be signed, filed, and served on the other party.

If the other party contests that it has been two years or if they contest that the marriage is not irretrievably broken, then a hearing will be scheduled where testimony will be taken as to why it has either not been two years or why it is not irretrievably broken. For parties who separated on December 4, 2016 or after, the state legislatures reduced the waiting period for this no-fault divorce to one year. The same process does apply in this situation as set forth above, only the waiting period was reduced.

In either type of no-fault divorce, this is only the first step in getting your divorce. Your divorce will not be final if there are issues regarding assets and debts or alimony that remain undecided. You will still then need to either come to an agreement or go to a divorce hearing before the divorce will become final. There may be an exception in an emergency case, in which the court may grant the decree in divorce before the court determines how to divide assets. This is known as a bifurcated divorce but is rarely granted.

1.5 How will a judge view infidelity?

Because Pennsylvania is a no-fault divorce state, there will rarely be testimony or evidence introduced about either spouse’s infidelity. Adultery, however, does remain a ground for divorce in Pennsylvania and a hearing can be scheduled on this count. In practice, however, the courts will hesitate to schedule the hearing until ninety days after the divorce was filed with the goal of having the parties consent to the divorce under the no-fault statute. In addition, the infidelity must be the crux that caused the marriage to break down and there must not have been forgiveness and acceptance of the infidelity in order to obtain a ground for divorce on the basis of adultery.

Infidelity is most often used in cases of spousal support or alimony. The party who earns more money can argue that they should not have to pay the spouse who cheated on them. Although it is a complete defense to spousal support, which is money usually paid while the parties are living separately but before a divorce is filed, it is only a factor in determining the alimony and is not a complete bar.

In no circumstances is infidelity a factor in determining how much of the marital assets a party will receive in the divorce. It may, however, be something to consider as far as expenses and holding a spouse accountable for the expenses or monies taken that were spent on the other relationship. For a party who makes less money than their spouse and who has been cheated on by their income-superior spouse, it is very difficult to accept that the infidelity by their income-superior spouse will have virtually no impact on the divorce process and this adds further to the pain caused by the infidelity.

1.6 Do I have to get divorced in the same state I married in?

No. Regardless of where you were married, you may seek a divorce in Pennsylvania if the jurisdictional requirements of