Believe it or not, this is the time of year that most family law practitioners will see a rise in the number of divorce filings. Although it’s not always a pleasant topic, many people contemplating a divorce or separation or currently going through one have many questions about the process.
Below are some basics and some commonly asked questions:
2 WAYS TO END A MARRIAGE:
- Divorce – marriage was valid but for one reason or another either one or both parties seek to terminate the marriage
- Annulment – the marriage was not valid when it took place – either the parties are related, one party is mentally incompetent or intoxicated and could not consent, one of the parties is already married, or they are underage
- Many people confuse a religious annulment with a legal one – vastly different
- Many people assume that simply because they have been married for a short period of time the marriage was never consummated they are automatically entitled to an annulment – WRONG
2 TYPES OF DIVORCE:
- Fault Based Divorce – you are alleging that your spouse has done something wrong which has directly destroyed the marriage
- No-Fault Divorce – you are seeking to dissolve the marriage but there are no allegations of wrongdoing on your part or your spouse’s
- Many people assume that they want a fault-based divorce because they feel that they have been “wronged” in the marriage – not necessarily the way to go
- In a fault based divorce you must not only prove that the other party is at fault, but also have absolutely no fault of your own as well – this is a very time consuming process and will also cause the amount you are paying in attorney’s fees to skyrocket
- For these reasons, most people elect to file for a no-fault divorce
2 TYPES OF NO-FAULT DIVORCE:
- Both parties are consenting to the divorce and the parties have not been separated for two years
- The parties have been separated for over two years and they will both sign affidavits indicating that they have been living separately and that the marriage is irretrievably broken
- Many people assume that because they have been separated from their spouse for at least two years that they can file for a divorce and get one automatically – not the case – you are still required to give notice to your spouse that you have filed for the divorce and that if they do not respond to the paperwork, that a divorce can be granted. It doesn’t matter if you don’t know where your spouse is – there are still ways that you can get the divorce.
Property Distribution in a Divorce
- Pennsylvania has a bifurcated system for domestic relation cases. This means that the divorce is separate from the property distribution, custody and support issues.
- Pennsylvania is also an Equitable Distribution state – this means that marital property and marital debt is determined based on what the court sees as equitable – not half and half.
- Don’t assume that if you do not have any assets with your spouse that the divorce will be easier – debt allocation can be tricky as well.
- I have scheduled an appointment with an attorney and the paralegal has asked for the date of separation. My husband and I are still living in the same house but not “together”. What does this mean?
The date of separation is usually the date upon which the spouses cease living together. This can be a bit tricky now because many times in the interest of young children, couples will stay in the same house together but sleep in separate bedrooms, the wife will begin using her maiden name or bank accounts may be changed. All of these things will be taken into consideration. Pennsylvania has no such thing as a legal separation – you are either married or divorced. The actual date that you begin making these changes will affect things such as the time limits for filing certain types of divorce and property distribution matters as well. Keep track of when you started to do things separately and let the attorney know – he or she will then be able to help you determine the exact date.
- I know my wife and I are going to fight over who is entitled to our cars and our house. One car we bought while we were married, the other my wife bought after we split up and she is continuing to live in the house while I pay the mortgage. Who is entitled to what?
Marital property is typically defined as those assets accumulated during the marriage. If you buy a house while you are married this is marital property. This may also include funds you accumulated prior to the marriage, inheritances and gifts. If you think that an asset should not be included as marital property the burden is on you to prove that it is strictly your asset and no in any way connected with your spouse or the marriage. This means concrete proof – simply your testimony is not enough. Keep in mind that any assets which are deemed to be marital property are subject to equitable distribution (having the court divide up the assets).
- Although I had an excellent job for a while, my husband now earns much more than I do. I have to be entitled to spousal support as part of my divorce settlement right?
Not necessarily. Most often spousal support is issued pendent lite which means pending litigation- or before the final divorce decree. A spouse may be entitled to some spousal support as part of a divorce decree but this is usually where one spouse has been a homemaker for several years and has been outside the workforce, or may have certain medical needs. A support order may also be entered to allow a spouse to pay the mortgage on a home while there are still minor children living in it. All of these things will factor into the determination. In this case however, barring anything else, if a spouse is seeking long term spousal support just because he or she is no longer earning what they used to – as long as they have the ability to earn more – don’t count on receiving support long term. Also keep in mind that spousal support and child support are two completely separate issues.
As always for a referral to an attorney dealing with divorce matters, contact the Allegheny County Bar Association’s Lawyer Referral Service at (412) 261-5555, or search on-line at www.pittsburghlawyerfinder.org.