A marriage can end either by annulment or by divorce in Pennsylvania. Although some states allow legal separation, Pennsylvania does not recognize this as an option for couples who do not want to be married any longer.
Pennsylvania is both a no-fault and a fault-based state. A couple can simply cite that a marriage is irretrievably broken, or a spouse can also cite one of several at-fault reasons as well, such as cruelty, adultery, or a spouse’s incarceration, among others. This is sometimes done to gain more favorable terms during a settlement.
The Commonwealth is an equitable distribution state, meaning the courts will attempt to distribute marital assets in a fair and equitable way, but this does not necessarily mean that the split will be 50-50. There are several rules and guiding principles governing the division of assets that can impact a court’s decision to approve a settlement.
Here are some of the important legal questions and major issues you should know about that come up during a divorce in Pennsylvania:
Pennsylvania is an equitable division state. Unlike community property states where all marital property is divided equally, in Pennsylvania assets are divided in a fair and equitable manner, which may not be exactly 50-50.
By law, according to Pennsylvania Consolidated Statutes, when awarding property in a divorce a court must consider the following factors:
Businesses are also considered marital property, but may be difficult to divide, although they are still subject to equitable distribution. In cases such as this, it may be possible to award the business to the spouse who is more involved in the business and make up the difference with other marital property going to the other spouse.
In Pennsylvania, any debts acquired during a marriage are the responsibility of both parties, even if it is only one party that was responsible for accruing the debt.
In settlement discussions, it may be possible for one spouse to take control of a larger portion of one debt in exchange for other considerations, such as gaining control of an asset to a larger degree than the other spouse.
When the divorce is final, if a spouse has chosen this route, they are individually responsible for making sure payments are made to comply with the court order. However, if a spouse can’t make payments or refuses to pay, the nonpayment of the debt will affect both spouse’s credit scores.
When nonpayment becomes an issue, a spouse can request that the payments be enforced by seeking relief in court.
In Pennsylvania, marital property does not include property that was acquired as a gift, except when that gift was given from one spouse to the other. Gifts that are given between spouses are considered marital property and are subject to equitable distribution in a divorce.
To make sure the gift does not fall under the rules of equitable distribution, it is important to make sure the gift is not commingled with marital assets. For example, if one spouse receives a large cash amount as a gift, they must make sure that it is placed in a separate account or otherwise kept apart from marital assets.
Pennsylvania laws state that property inherited by one spouse during a marriage is separate and not subject to marital property rules.
However, separate ownership of inherited property can be invalidated if the person who inherited the asset commingles it with marital assets. If you inherit money and put it in a joint account then it could be considered marital property. The same holds true if you inherit a house and both spouses end up living in it.
If you are concerned about commingling assets, you should do whatever you can to make sure you document and take action to keep an inherited asset separate. One other way to protect an inheritance is to have your spouse sign a postnuptial agreement whereby he or she agrees that the inheritance is yours, no matter how it is used in the marriage.
Pensions, IRAs, 401Ks and retirement plans acquired during a marriage and up to a date of separation are treated as marital property in Pennsylvania. However, only the portion that was acquired during the marriage is subject to marital property rules.
Legally splitting pensions and other retirement funds is a multiple-step process. After the divorce decree has been issued, an attorney or a specialized firm must create a qualified domestic relations order, more commonly referred to as a QDRO.
The QDRO must be approved by the courts and then it can be submitted to the plan administrator who must also approve it. This establishes that a spouse can be considered an alternate payee, and the retirement vehicle is then divided according to the specifics contained in the QDRO.
In Pennsylvania, all property and all debt accumulated during the marriage belongs to both spouses. Any property that is considered separate property is not divided during a divorce. Each spouse gets to keep his or her own separate property which includes:
But there are exceptions when it comes to separate property. Although inheritance acquired during a marriage is considered separate property, if the assets of the inheritance are commingled then it may be possible to claim that the inherited assets have become marital property.
In cases where a home was bought before two people married, if both people live in the home during the marriage and both contribute to mortgage payments, then the case can be made that the house is no longer separate property, but community property instead.
Alimony is not automatically granted in Pennsylvania. A spouse must show cause why they should receive alimony, making a factual case for a specific amount and duration. Alimony will vary from case to case based on individual situations.
Pennsylvania uses guidelines to begin the process of determining alimony, but several factors could cause the amount to either go up or down.
In general, if there are no children in the marriage, the requesting spouse is entitled to 40% of his or her spouse’s income, minus their own income. For example, if one spouse makes $100,000 a year and the other spouse makes $50,000 and requests alimony, then the guidelines would work like this: $100,000 – $50,000 = $50,000. $50,000 x 40% = $20,000. The requesting spouse would receive $20,000 annually in spousal support under this scenario.
If children are a part of the marriage, the guidelines change. The child support amount is subtracted from the difference in income and then multiplied by 30%. For example, if child support amounted to $24,000 a year, then alimony would work like this: $100,000 – $24,000 = $76,000. $76,000 x 30% = $22,800. The requesting spouse would receive $22,800 in spousal support.
If the spouse seeking support is at fault in the marriage and the divorce is filed as a fault-based proceeding, the judge may modify or deny alimony, depending on the circumstances. Also, if there is a significant change in either spouse’s circumstances, the amount of alimony may be revisited. This may be the case if a spouse has a large increase in income, or if they lose their job.
Alimony ends when the spouse collecting spousal support gets remarried. On the other end of the spectrum, it’s important to note that a spouse can seek alimony payments even before a divorce is finalized.
Depending on the particular circumstances of a divorce, alimony may be ordered for varying amounts of time. Judges will exercise discretion in determining the length of alimony payments.
According to Pennsylvania Consolidated Statutes, alimony is based on need depending on a number of factors that the court may take into consideration when deciding how much alimony to award and for what length of time.
By statute, those factors include:
The state uses official Pennsylvania Child Support guidelines to determine the specific amount of child support that should be awarded. These guidelines will govern the vast majority of cases, unless parents have made an alternative agreement that is approved by the courts, or that there are extenuating circumstances that require a modification in the amount.
Both parents may be held accountable for paying child support since the amount is based on the combined income of both parents. This amount is then prorated on a predetermined base support amount.
The state uses an Income Shares Model to determine how much a noncustodial parent should pay. It is based on the amount of support that the parent would have paid if the marriage had not ended. This amount is then divided between parents according to their income. You can use the Pennsylvania Department of Human Services Child Support Estimator as a starting point to see how much you may be required to pay. Access the Estimator here.
This will provide an estimated amount, but courts will also consider deviation factors before setting a final amount. According to support guidelines, deviation factors can include:
Health insurance is often times required by the court as part of child support payments, assuming it is available and at a reasonable cost, most of the time through a spouse’s employer. In Pennsylvania, one or both parents must provide medical insurance coverage for the children when custody is shared and both parents have insurance.
When neither parent has access to employment related benefits, the court orders one or both parents to obtain health care coverage for the children.
Child support ends when a child graduates from high school or turns 18 years old, whichever takes place later.
The Pennsylvania court system has a strong preference in seeing parents share custody as equally as possible in a divorce case. Courts also prefer that parents come up with a suitable and mutually agreed-upon parenting plan that supports this preference.
However, this plan must take into account the child’s well-being as a primary concern and courts will base their final custody judgment based on the best interests of the child. The parenting plan should be spelled out specific agreements as to where the child will reside and on what days, including weekends and holidays.
A court will consider many factors when approving a child custody arrangement. Some of these factors will include:
Pennsylvania recognizes legal custody and physical custody and uses the term “shared custody” instead of joint custody when making sure that the child has ongoing and frequent contact with both parents unless extenuating circumstances are present. Sole custody is only awarded when it is clearly in the best interests of the child.
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Physical custody defines which parent the child lives with. It is also known as residential custody and dictates who is responsible for the day-to-day physical care and supervision of a child. A judge may choose to grant joint physical custody in which case the child will live with each parent an equal amount of time. In cases where sole physical custody is granted, the child will live with one parent a majority of the time and the other parent will be granted visitation rights.
Legal custody means that both parents have rights to make important decisions that affect their child, including things such as healthcare, education and religious considerations.
Pennsylvania does allow grandparents to be awarded partial custody of a child but only if the child lived with the grandparents for more than one year and there are no contentious issues between the grandparents and the child’s parents.
Pennsylvania is both a no-fault state and a fault-based state, and you only need to state that a marriage is irretrievably broken to file for divorce. However, you can also file for divorce stating reasons for the divorce. Although substance abuse is not one of the reasons that can be cited, if it can be proved that one spouse had a drug or alcohol problem, this fact may be able to be linked to one of the at-fault reasons, such as cruel and barbarous treatment or treating a spouse so poorly as to make their life intolerable and their life burdensome.
Where substance abuse carries more weight is in discussions regarding child custody. A court will not allow a parent to take custody of a child if there is a danger to the child, as there would be with drug or alcohol abuse being present. Courts will always take the best interests of the child into primary consideration and this type of problem represents a clear and present threat to the well-being of the child.
Substance abuse can also have an impact on a division of assets in Pennsylvania. If it can be shown that a spouse spent considerable marital assets to feed their habit, a judge may be inclined to award the other spouse more assets to make up for the difference. In cases such as this, it is important to document substance abuse as soon as you become aware that it may be a factor in a divorce action.
Bifurcation means that both parties in a divorce can legally declared as a single person while some issues in their divorce are still being worked out. It does not affect things such as child custody, visitation, child support, alimony or other contentious issues that may have stalled or become major sticking points that are keeping the divorce from being finalized.
Recent law changes in Pennsylvania have made it more difficult to enter into a bifurcation, but it is still possible as long as both parties consent to the process. Courts much prefer to not issue divorce decrees until all matters have been resolved, but will allow bifurcation, especially when there are circumstances that warrant it.
Courts may enter a decree of divorce or annulment before certain matters have been resolved, such as custody issues, property rights and interests, child support, alimony, attorney fees, and other costs and expenses.
In cases where both parties do not consent to bifurcation, a court may still enter a divorce decree or annulment if there are compelling circumstances or that grounds for divorce have been sufficiently established. Those grounds must be one of the six standards applied in a fault-based divorce.
Seeking a bifurcated divorce allows the spouses to move more quickly in starting to rebuild their lives and encourages more movement toward settling outstanding issues. There may also be tax advantages as well.
When considering bifurcation, it is best to consult with a family law attorney who can best advise you on the pros and cons of moving in this direction.
One of the keys in a divorce is making sure that all assets are documented and accounted for by both spouses. This can be a problem if one spouse or the other attempts to hide assets.
In Pennsylvania, financial disclosures are made at the beginning of a divorce proceeding. Both spouses are required to file a financial disclosure statement that is a comprehensive list of their assets and debts, including cash, personal property, vehicles, and most home furnishings.
Courts require that a financial disclosure statement must be updated if there is a significant change in either debts or assets from the original document filed with the court. Failing to do so could result in sanctions by the court. Providing false information could lead to contempt of court charges that might result in monetary sanctions or penalties in the distribution of assets.
Spouses can legally challenge the financial disclosure statement that is filed. In fact, this is a fairly common practice among spouses in Pennsylvania.
When a spouse does not sign divorce forms or fails to provide information when requests for documentation are made, the other spouse can seek a default divorce.
You must serve your spouse with divorce papers within 30 days of filing your complaint with the court. A spouse will have 20 days from the date they are served to file an objection or a response to the contents of an original divorce complaint. If the spouse does not respond within that timeframe, the court will consider that person to be in default.
When this happens, the petitioner can file an application for a Clerk’s Default, along with the original complaint and proof of service documentation.
You will then need to prepare a Judgment and Decree of Divorce which will be mailed to the non-responsive spouse. Once this is done, make an appointment for a default hearing. At the hearing, the judge will review the complaint, ask questions about support, alimony and other financial issues and assuming everything is in order, the judge will grant the divorce by default.
When domestic violence is present in a marriage in Pennsylvania, any divorce actions are secondary to the immediate safety of a spouse or children who may be in immediate danger.
Domestic violence can include any physical abuse, emotional abuse, stalking, or any other kind of harassment including those made through phone calls, mail, or social media inflicted on one spouse by the other.
Law enforcement has strong safeguards against domestic violence and when it is present in a marriage, the first goal is for a spouse to take steps to make sure they are safe above all else. This means the first thing a spouse must do is leave the residence where the abuser is living and if the threat is imminent, call the police. You can as the court for a civil order of protection to legally keep a spouse away from you either before a divorce action begins or during a divorce already in progress.
Domestic violence may be used as one of the fault-based reasons in filing for a divorce in Pennsylvania. It meets one of the six standards that must be cited in a fault-based divorce.
Citing domestic violence as a reason for divorce will also have additional impacts when it comes to the issue of child custody. Pennsylvania courts will not allow someone with a documented record of domestic abuse to have custody of any children in a marriage. This is completely counter to the overriding concern of putting the best interests of children first when it comes to divorce and custody issues.
In support cases where health insurance is available to both a husband and wife through their employment, the court will require one of them to provide health insurance for the children. If only one spouse has health insurance then they will be required to provide the health insurance. If neither spouse has coverage, then the court may require the primary custodial parent to provide coverage by applying for government-sponsored coverage.
The cost to provide health insurance for children is generally divided between spouses in proportion to their net incomes. These amounts are then plugged into the larger overall settlement issues and division of assets to be decided upon.
Under most circumstances in Pennsylvania, one spouse may not remove the other from their healthcare while a divorce is pending. This means in most all cases that the coverage that was in place at the time of separation must be maintained while a divorce is pending. If one spouse removes the other they can be ordered to reinstate the spouse and could be held liable for any medical expenses incurred as a result in the gap in coverage.
After a divorce is granted, a spouse may no longer remain on the other’s health insurance plan and they must seek out their own healthcare coverage. As part of a settlement, a judge may order one spouse to pay for the other’s health insurance.
You can also apply for COBRA benefits which is a law that protects people from losing health coverage during major life transitions. It allows you to continue with your spouse’s current coverage for a specified period of time as long as you pay the premiums.
Infidelity and adultery take place when a spouse has sex voluntarily with someone other than their spouse while they are still married.
Adultery is one of the reasons that can be cited in a fault-based divorce in Pennsylvania. When adultery is cited as a reason for a divorce, it may be used as a means of getting a more favorable settlement from the courts, especially if it can be shown that the adulterer spent marital assets on the affair in question.
Your or your spouse must be either live in Pennsylvania or be stationed in the state to meet residence requirements under the laws governing military personnel who are seeking a divorce.
The grounds for a military divorce are the same as they are for a civilian divorce. You can either end a marriage through mutual consent because it is irretrievably broken, or you can cite more specific faults for seeking a divorce.
Once paperwork has been filed to begin a divorce, copies must be served on a spouse to give him or her a chance to respond. When that spouse is in the military, they have certain protections afforded to them by the Servicemembers Civil Relief Act. This allows them to postpone the divorce while they are overseas or otherwise not able to respond to the petition due to military service commitments.
A divorce proceeding may be postponed for the entire the time active duty member is serving and for up to 60 days following discharge, which is typically the case when a service member is deployed in a war. This eases many legal and financial burdens of military personnel and their families who face the added challenges of active duty.
A service member may also choose to waive delaying the divorce by signing off on paperwork which will then allow the divorce to proceed uncontested.
In addition to Pennsylvania property division laws, the federal government also protects military personnel through the Uniformed Services Former Spouses Protection Act that governs how military benefits are calculated when a divorce takes place. Federal laws will not allow a military members retirement to be distributed to a spouse unless the couple has been married for 10 years or more while the service member was on active duty.
Child support and spousal support are determined by state guidelines, but federal law dictates that child and spousal support awards may not exceed 60% of a servicemembers pay and allowances if they are single. Normal Pennsylvania child support guidelines are used to determine the appropriate amount of child support that should be paid.
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Jason Crowley is a divorce financial strategist, personal finance expert, and entrepreneur. Jason is the managing partner of Divorce Capital Planning, co-founder of Divorce Mortgage Advisors, and founder of Survive Divorce. A leading authority in divorce finance, Jason has been featured in the Wall Street Journal, Forbes, and other media outlets. He is a Chartered Financial Analyst, Certified Financial Planner practitioner, and Certified Divorce Financial Analyst. You can email him at jason@survivedivorce.com.
