Alimony in Pennsylvania

Easing the Pain of Divorce

First, I must apologize for the picture. Alimony can be paid by either spouse, and with the increasing number of women who earn more than their Husband’s, this is no longer uncommon. The authors of free clip art haven’t caught on to this yet.

When most people think about alimony, they are talking about support for a former spouse, which continues after a divorce is final. In Pennsylvania, Alimony Pendente Lite can be awarded during a divorce: this is a temporary form of alimony, which can be awarded while a divorce is pending.

Spousal support is an entirely different process: this is support that is paid following a separation, but before a divorce. Spousal support is still governed by old-fashioned notions of fault in divorce: in order to receive it, the economically dependent spouse must prove that the separation was caused by their Wife or Husband, and that they are free from fault. This is a carryover from the days when all divorces were based on fault. In 1980, when the Pennsylvania legislature added no fault grounds to the divorce law, they also made provision for awards of alimony.

Marital fault still plays a role in an award of alimony, but it is only one of 17 factors which the court must consider in determining whether alimony should be awarded. Fault is not even considered when deciding whether to award Alimony Pendente Lite: the thinking being that providing economic support is necessary to allow the dependent spouse to contest the divorce.

There are many other factors. These include the earning capacities of each party, any other sources of income or property owned by either party, and the duration of the marriage. The contribution made by one party to the education of another, and the contribution of a spouse as homemaker are also considered.

An individual who cohabits with a person of the opposite sex is barred from receiving alimony.

How these factors play out is left to the discretion of the Court. Every situation is different, and the Judge (or Master) who hears the case is required to set forth a statement of reasons, explaining how the factors have been weighed, and applied to the circumstances of this case.

The duration of an alimony award is also a matter of discretion. The age of the parties, and the length of the marriage are usually the most important factors which the courts look at in determining the length of time for which alimony must be paid.

For spousal support, or alimony pendente lite, there is a formula which is used to determine the amount that is paid. If there are no dependent children, support is based on 40% of the difference between the spouse’s net income (or income capacity, if one of the spouses is able to work, but chooses not to). When there are children, spousal support is based on 30% of the difference in incomes. The amount of child support is determined first, and that is deducted from the obligor’s income.

 

Grounds for Divorce in Pennsylvania

At one time, grounds for Divorce were very important – unless you had good reasons for ending your marriage, you were not always able to obtain a divorce.

Pennsylvania’s Divorce Law has a long history. Originally, a Divorce could be obtained only on fault grounds. In general, this meant that a person had to prove that their spouse was at fault, and he or she was “the injured and innocent spouse.” In theory, this meant that if both parties were at fault, they were forced to stay married. The particular fault grounds were:

1. Desertion, for a period of one or more years;
2. Adultery;
3. By cruel and barbarous treatment, endangered the life or health of the injured and innocent spouse;
4. Bigamy;
5. Been sentenced to imprisonment for two or more years; or
6. Offered such indignities to the innocent and injured spouse as to render that spouse’s condition intolerable and life burdensome.

The last of these grounds was the most popular, being the broadest, and easiest to prove – particularly when the case was uncontested.

A rarely used provision allowed for divorce upon grounds of insanity, with confinement to a mental institution for at least 18 months, and no reasonable prospect that the spouse will be discharged.

In 1980, Pennsylvania added two no fault grounds to the Divorce Code. A divorce can be granted based on mutual consent. This requires that both spouses sign an affidavit, with a 90 day waiting period following the filing of a Divorce Complaint.

A second no-fault provision allows for a divorce based on an allegation that the parties have been separated for two years, and that the marriage is irretrievably broken.

Although the fault grounds are still a part of our law, they are rarely used – most parties prefer no to air their dirty laundry in public. If a divorce is contested, it is usually because the parties are arguing about economic issues such as alimony or distribution of property.

The Divorce Code does allow the Court to Order the parties to attend marriage counseling. The Court would require the parties to attend up to three counseling session. Following the sessions, a report is made indicating only whether the parties did, or did not attend. The counselor doesn’t decide whether the divorce should be granted, and neither party is required to reconcile if they don’t want to.

 

How to Divorce in Pennsylvania

Un-Married

When we talk about Divorce, the most difficult issues are related to money – questions about distribution of property, or alimony. But the first question many people ask is more basic – what are the grounds for divorce?

Grounds for Divorce in Pennsylvania

Pennsylvania was the last state in the country to adopt a no-fault Divorce law. Before that time, in order to get divorced, it was necessary to prove that one party was at fault, and the other was free from fault. If both parties were to blame for the marriage’s failure, their punishment was that they were required to stay married to one another.

In 1980, Pennsylvania adopted a no-fault divorce law, which added two additional grounds for Divorce. The law now allows for divorce where the marriage is irretrievably broken, without regard to fault. This can be done based on mutual consent, or, if one party withholds their consent, after a separation for two or more years. Although the fault grounds are still part of our law, they are almost never used: the no-fault law is easier, and less expensive.

Pennsylvania Divorce Procedures

The process is fairly straight forward: although most persons obtaining a divorce will need a lawyer to make sure that the proper forms are filed. The following is a simplified version of the process, which leaving out some of the technical requirements of the Rules of Civil Procedure. A Complaint is filed (which is a formal statement of your claims). This has to be served on the other party, usually by certified mail. If a person won’t sign for certified mail, the Complaint can be served by the Sheriff. If the Defendant cannot be located, after satisfying the Court that you have made a good faith effort to locate him or her, another means of service might be authorized, such as publication in a newspaper.

For a mutual consent Divorce, there is a waiting period of 90 days, from the date the Complaint was originally filed. If all other issues are resolved, and the parties each sign an Affidavit of Consent, the Court will grant a Divorce without a hearing.

If the grounds for Divorce are based on a two year separation, the person seeking the Divorce files and serves an Affidavit, stating that the marriage is irretrievably broken and the parties have been separated for at least two years. If the Defendant doesn’t file a counter-affidavit, the court will grant the Divorce.

Alimony and Property Issues in Divorce

Other issues can be joined to a divorce. Claims for Distribution of Property, Alimony, Alimony Pendente Lite (support during the divorce), or Counsel Fees must be raised before the Divorce becomes final – either by including them in the Complaint, or filing a separate pleading. Child Custody is handled separately: although it can be raised in a Divorce, most counties in Pennsylvania have a separate process for deciding custody issues.

If there are other issues, they will need to be resolved, either by a property settlement agreement, or having a hearing. In Blair and Cambria Counties, the Court will appoint a Divorce Master to hear the case. In Bedford County, the Judge will hear the case himself.

In most cases, all the issues will need to be decided before the divorce is final. In some circumstances, the court can bifurcate the case: this allows a Divorce Decree to be issued before a final decision is made on division of property or alimony.

Division of Property in a Pennsylvania Divorce

If I get divorced, will I automatically get half of the property?

In my house, if there is one piece of pie left, and two people who want it, we cut it down the middle. The Pennsylvania Divorce Code isn’t so

simple: property is divided on the basis of “equitable” distribution. Essentially, this requires the court to do what is fair, which may or may not be a 50-50 split. There are some obvious reasons for this: 50-50 isn’t always fair, if people’s circumstances are different. To use the pie example, suppose that one family member has already eaten the bulk of the pie, and the other hasn’t had a single piece.

Factors Affecting Equitable Distribution of Property

Rather than leave it totally to a Judge’s discretion, the Pennsylvania legislature included in the Divorce Code a list of 13 factors which should be considered. The factors determining how property is divided include the length of the marriage, the financial situation of each party, including their sources of income and opportunities for future acquisition of property, whether a party has custody of minor children, and the contributions of each party to the acquisition of marital property, including the contribution of a party as homemaker.

One factor that is not supposed to be considered is which party was at fault in causing the marriage to end. This is consistent with the purposes of Pennsylvania’s no-fault Divorce Law, which include a desire to “(g)ive primary consideration to the welfare of the family rather than the vindication of private rights or the punishment of matrimonial wrongs.”

How Property Rights are Decided in a Pennsylvania Divorce Case

If the only asset the parties have is money, dividing the property is fairly easy. In many cases this doesn’t work well. Sometimes, the largest asset is the marital home. You can’t cut this in half. In some cases, the home is sold. One spouse might be given the opportunity to buy out the other. If children are involved, there are times when the sale is delayed, to allow the children to remain in the home for some period of time.

When one, or both parties owns a pension, there are several choices. If there are other assets, the other spouse might be given some or all of those assets, in order to offset the value of the pension. If a part of the pension is being divided, the Divorce Decree might include a special order, known as a Qualified Domestic Relations Order (QRDRO), which could require that a portion of the pension be paid to the other spouse.

What Happens to Debts in a Divorce?

If either or both parties have debts that have been incurred during the marriage, a Divorce Court should take these into consideration. Sometimes the debt partially offsets assets: for example, if a house or car has been financed, the value is based on the difference between the value, and the payoff on the loan or mortgage.

If the debt is joint, and one spouse is supposed to pay it, the other party should know that this does not mean that the creditor has released them. If the debt isn’t paid, they may be liable for the debt, or have their credit affected. With mortgages, this problem can sometimes be avoided at the time of the Divorce, either by re-financing the home, or obtaining a release from the bank.

Can Property Owned by One spouse be Divided in a Pennsylvania Divorce?

Marital Property in Pennsylvania

In a Pennsylvania Divorce, marital property is defined as anything of value, which was acquired between the date of the marriage and the date of separation. Whose name is on the property doesn’t matter for this purpose. Marital property includes things such as a home, vehicle, bank accounts, furniture, and pension plans.

If something was owned separately before the marriage, but later transferred to joint ownership, it becomes marital property. Even if it remains solely in the name of one spouse, the increase in value during the marriage is marital property. A claim for this would have to be made during the Divorce.

Anything that is marital property is subject to equitable distribution. In Pennsylvania, this doesn’t necessarily mean a 50-50 division: the Divorce Code requires that the Court consider a list of factors which must be considered when deciding how marital property is divided.

Real Estate

If one spouse owned a home before the marriage, and title was never put into joint ownership, the other spouse could still make a claim for some portion of the home’s value: it may have increased in value during the marriage, because property values increased, payments were made on the mortgage, or improvements were made to the property.

Pensions

Another common situation arises with pensions. Suppose one spouse began contributing to a pension plan before the date of the marriage, and continued to do so after the date of separation. The portion of the pension he or she earned during the marriage can be divided, but whatever was earned before or after cannot. In some cases, this can be done through a formula, which defines the marital portion of the pension. Typically this would be a fraction, where the numerator is the number of months of the marriage, and the denominator is the total time the person was contributing to the pension plan.