When a marriage becomes irreparably broken, one of the options available is undergoing the process of divorce. Divorce can be a lengthy, complicated and frustrating process. Although the term itself refers to just the termination the marriage, there are a number of aspects involved in the legal realm of divorce proceedings.
Divorce: An Overview
In order to begin divorce proceedings in Pennsylvania, at least one of the spouses must have lived in the state for the past 6 months. Divorce complaints are normally handled in the Court of Common Pleas for the county of spouses seeking divorce charges. There are a few ways that divorce can proceed. Divorce in Pennsylvania can either be done with or without fault. "No fault" divorce typically means that both parties agree that a divorce is necessary. A fault divorce is a civil proceeding that requires proof that one party has done some sort of wrong to the party that initiates the divorce.
In any divorce case, the first step is a filing for divorce. Since divorce itself is a civil proceeding, the spouses will become "plaintiff" and "defendant" even in a no-fault claim. The spouse that initiates the process may be referred to as "plaintiff" and the spouse that they wish to separate from will be known as the "defendant." While these terms will be used officially, in a mutually agreed upon divorce, they are more likely to serve as formalities. The dynamic of plaintiff versus defendant comes into play more often in cases of fault divorce.
Mutual Consent Divorce
Mutual Consent Divorce is the most common type of divorce. Once the plaintiff makes the divorce filing it will be served to the defendant. After 90 days have passed from the serving, both parties can then file their consent to the divorce, along with any other relevant documents for consideration. During this 90 day period both parties will be given the opportunity to work out custody, support, alimony, and property division. Once the time is up, if an agreement has been reached on all matters, the divorce will be finalized, and both parties will sign the documents doing so. If the terms cannot be agreed upon, the matter will go to a hearing in front of a judge.
Two-Year Separation Divorce
A two-year separation divorce is also a no-fault type of divorce. If one of the spouses refuses to sign the terms of the divorce, the other spouse can separate. Once the spouses have been separated for two years, then the spouse desiring a divorce can claim that they have been separated for over two years and that the marriage is irreparably broken. This claim will be served to the other spouse. If the other spouse fails to respond, then the court will grant the divorce.
Fault divorce is an older method of divorce, and has much more complexities. When a plaintiff files a case for fault divorce against a defendant, the plaintiff must prove wrongdoing on the part of the defendant. Wrongdoing can include infidelity, endangering one's life, desertion for over a year, insanity causing commission to a mental health facility for 18 months, or imprisonment for at least two years, A particularly difficult hurdle a plaintiff must overcome is proving that they are completely free of guilt for any wrongdoing. For this reason, without solid evidence of wrongdoing, it is sometimes much simpler, and safer, to go the way of a no fault divorce.
Beyond The Divorce
The divorce documents themselves simply acknowledge the dissolution of the marriage. There is much more to a divorce than simply dissolving the marriage. A marriage by itself creates a partnership between two people, and breaking the two people apart also divides their money, their possessions, their place of living, and their time spent with children.
Alimony refers to monetary support paid by one spouse to another following a divorce. Alimony in Pennsylvania is only awarded if it is deemed necessary by the judge. The judge weighs circumstances such as the income for both spouses, needs of both spouses, and other factors, and makes a decision of whether or not alimony will be awarded and how much will be necessary.
Division of Property, Assets, and Debts
Property, assets, and debts are collected by both spouses, but when a marriage splits, they must be divided fairly between the two. Even if the spouses have separate bank accounts, and purchased things separately, everything gained during the marriage is eligible for division. This can include everything from the house and cars to bank accounts and valuables. Division will be based upon factors like child custody, income, contribution of each spouse, and other factors.
If the spouses have children, a custody agreement must be worked out during the divorce in order to decide who will take care of the children. Decisions much be made regarding who should have legal custody and who should have physical custody of the child or children. Legal custody in Pennsylvania is the right to make major decisions affecting the children, including medical, religious and educational decisions. Legal custody is broken down further between sole and shared custody. Sole legal custody gives one party the right to make the major decisions concerning the children, and shared legal custody gives both parties the right to do so.
Physical custody in PA is the right to have the child or children in your physical care. There are four types of physical custody in Pennsylvania. Primary physical custody gives one party the right to have possession of the children the majority of the time. Shared physical custody gives two parties the right to have frequent contact with the children. Partial physical custody is the right to unsupervised visitation of the children, and may be for a few hours every week, one day a week, every other weekend, etc. Supervised visitation usually only is considered when a party's anticipated supervision of the child or children gives cause for concern. Such visitation can be supervised by a relative, a friend, and sometimes, in very serious situations, may be supervised by a county agency. Ultimately, determining custody during the divorce can also lay out the groundwork for child support and division of property.
If two spouses take care of children together, a custody agreement will be worked out in the divorce. Another aspect of divorce that deals specifically with the children of the divorce is child support. This is split between the spouses depending on the custody agreement, the income of parents, and other factors. The goal of child support is to aid a spouse with the care-taking of a child.
Divorce is a complex and emotional matter. Undergoing the process of divorce without an attorney can leave you with an unfair outcome. Don't enter the courtroom alone. If you or a loved one is going through divorce proceedings, or other matters of Family Law, contact attorney Joseph D. Lento today.