Divorce, Support and Prenuptial Agreements
Divorce is a sensitive, complex issue which can dramatically change your life. If you have children, they need to be reassured that both parties still love and care for them and will provide for their ongoing needs. The family law attorneys at Smigel, Anderson & Sacks offer a simple answer to your complex divorce. There are three different approaches to handling a divorce, including the division of property, support issues and child custody questions. They are traditional litigation, mediation and collaborative law.
In the mediation process, the parties attempt to resolve their dispute in an informal setting with the help of a mediator. Mediators facilitate resolution of disputes, but do not provide legal advice to the parties. The parties are encouraged to retain their own attorneys to prepare and review any settlement agreement that the parties are able to reach. The parties control the outcome.
Litigation begins with the filing of a complaint or similar legal pleading. Each party retains an attorney who represents the party in court proceedings and in the negotiation of any settlement agreement. The ultimate purpose of litigation is to have the court decide the divorce and related issues, although many cases settle before actually reaching a court hearing.
The collaborative process is designed for individuals who want to resolve their divorce privately, in a respectful manner, without court involvement. Collaborative law allows divorcing parties to maintain control over their divorce, rather than relinquishing decisions regarding their family to the court.
There are many questions you might have prior to filing a divorce complaint. You probably have many questions if you are the spouse who has just been served with a divorce complaint. The following is a summary outline of the different bases for divorce recognized in Pennsylvania.
There are three bases for divorce in Pennsylvania:
1. No Fault
The complaint alleges that the marriage is irretrievably broken. 90 days following service of the complaint a divorce decree can be entered IF both parties file written consents.
- a. Party Seeking divorce must be the “innocent and injured” party.
- b. Other party has committed one or more of the fault grounds recognized in PA:
- Willful and malicious desertion (one or more years)
- Sentenced to prison for two (2) or more years for conviction of a crime
- Indignities: on-going course of conduct which renders condition intolerable and life burdensome
- Insanity or serious mental disorder
The complaint alleges that the marriage is irretrievably broken. A divorce can be obtained two years after the date of separation if:
- A. the parties have actually been separated for two years and
- B. the marriage is actually irretrievably broken and
- C. one party files written consent
Up to three sessions of Marriage counseling are available.
Distribution of Property
When facing a divorce, most people are anxious about how their property will be divided. Under the Pennsylvania Divorce Code, property is divided in a process known as equitable distribution. This doesn’t necessarily mean that it will be divided equally between the parties. It means that the court will try to divide the property fairly between the parties. This may mean that it is “fair” for one spouse to receive a greater percentage of the assets than the other. The factors that the court considers when dividing marital property are set forth below. Keep in mind that it is irrelevant – for divorce purposes – in which party’s name the assets or debts are held or titled.
Relevant Factors for Division
- Length of marriage
- Any prior marriages
- Age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each party.
- Contributions to other party’s education, training, or increased earning power
- Opportunities to acquire assets and income in the future
- Sources of income
- Contributions or dissipations in acquiring, preserving, depreciating or appreciating assets (homemaker’s contributions are included)
- Value of property set aside for each party
- Standard of living during marriage
- Economic circumstances of each party (including tax)
- Whether a party will be custodian of dependent minors
It is possible that not all property will be available for distribution. For example, some property may be considered non-marital. You should consult an attorney for further review of the law in this area.
Alimony, Spousal Support and Alimony Pendente Lite
Many people confuse the payment of spousal support and alimony pendente lite with the payment of alimony. There is a distinct difference between these types of support. You should consult an attorney to learn when you may be entitled to receive, or be obligated to pay, any of the above.
Pennsylvania recognizes two types of custody:
- Legal Custody: parenting decisions (usually shared) for example: where will the child go to school?
- Physical Custody: Where the child physically stays (usually shared, but in numerous different ways and to different extents)
Custody is an issue open for reconsideration by the Court at any time. The only issue for the court to consider is what is in the “best interest of the child.” There are many different shared custody arrangements. You should consult with an attorney to assist you in entering into a formal arrangement in the best interest of your child(ren). Both parents are obligated to provide for the support of their child(ren). Pennsylvania has support guidelines. Your attorney can assist you in arriving at the appropriate support amount given your particular circumstances.
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