Marriage and divorce law

The following information was discussed by Attorney Whitney Hughes on the July 16, 2007 edition of Legal Briefs on KDKA's Pittsburgh Today Live Show.

My spouse and I have decided that we need to end the marriage. What are our options?

Under Pennsylvania law, there are two ways to end a marriage—divorce or annulment. When you seek a divorce, you are alleging that the marriage was valid, but for one reason or another either one or both parties seek to terminate the marriage. In an annulment, the marriage is terminated because it 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.

I spoke with an attorney who suggested filing a no-fault divorce. My spouse has cheated on me and is certainly not without fault. Why shouldn't I file a fault based divorce?

There are two types of divorces available in Pennsylvania:

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 the part of you or your spouse.

Many people assume that they want a fault-based divorce because they feel that they have been “wronged” in the marriage. While you may have been, this is not necessarily the way to proceed.

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 type of divorce 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.

Can I automatically get a divorce if my spouse and I have been separated for more than 2 years?

There are two types of No Fault Divorce in Pennsylvania:

  1. Both parties are consenting to the divorce, and the parties have not been separated for two years.
  2. 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. This is¬ not the case, as¬ you are still required to give notice to your spouse that you have filed for the divorce, and that if he/she does not respond to the paperwork, that a divorce can be granted.

How is Property Distribution handled in a divorce? Do we both get equal shares?

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. Keep this in mind, because many people assume that because they do not have any assets with their spouse that the divorce will be easier, but debt allocation can be tricky as well.

Terms Commonly Used and Things to Keep in Mind:

  1. Date of Separation: This 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, bank accounts may be changed, etc. 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.

  2. Marital Property: This 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 not in any way connected with your spouse or the marriage. This means concrete proof; ¬simply your testimony is not enough. Keep in mind that even things which may seem cut and dry may not be. If you have an account which contains non-marital funds and you then use them for a common purpose, like buying property, the funds have now become marital property. If you have a non-marital asset which has gained value during the marriage, the increase in value is marital property as well.

  3. Different Rules for Military Marriages: Normally when you are served with divorce proceedings, you must respond within a certain time. The Soldiers and Sailors Relief Act says that the divorce can be postponed for the entire time the service member is on duty and for 60 days afterward. The federal government has also enacted the Uniformed Services Former Spouses Protection Act which authorizes a direct payment of a portion of a retiree’s pay to a former spouse ONLY IF they have been married 10 years or longer while the service member is on active duty.

If you need to speak to an attorney, call our Lawyer Referral Service at 412-261-5555.