Common Family Law Concepts

While you may find it comforting to speak with friends or other individuals who have gone through the divorce process, you should keep in mind that every case is unique and that these individuals, while well-intentioned, cannot provide valid legal advice about your particular situation. Likewise, reading books which deal with various aspects of divorce can be helpful in familiarizing you with the divorce process, but this type of self-education should not be used as a substitute for speaking with one of our seasoned family law attorneys who will assess your individual circumstances and give you fact specific and practical advice based upon the current laws and procedures of the Commonwealth of Pennsylvania. Please call 215-362-2474 to schedule a consultation for help with a separation, divorce, or any of the above related issues. You may also e-mail us at info@dybd.com.

No Fault Divorce: In the Commonwealth of Pennsylvania, a person may obtain a no-fault divorce based upon either a two-year separation or an agreed-upon irretrievable breakdown of the marriage. If a party requests a no-fault divorce, the issue of whether one or both spouses are at fault in the dissolution of the marriage is irrelevant. The only issue is whether both parties agree that the marriage is irretrievably broken or whether the parties have been separated for a period of two or more years.

Fault Divorce: Pennsylvania Courts have the authority to grant no-fault divorces and fault divorces. This means that a party may also request a divorce based on fault grounds such as adultery or cruelty. However, because there is usually no real advantage to pursuing a divorce under fault grounds, and because doing so requires yet additional attorneys fees, most individuals opt to request no-fault divorces.

Equitable Distribution: All marital property is subject to equitable distribution. Marital property includes all property acquired by either party during the marriage, regardless of how it is titled. It also includes the increase in value of non-marital property such as gifts and inheritances, provided these assets are not transferred to a joint account or asset during the marriage. Equitable distribution means “fair” distribution and does not necessarily mean equal distribution. In determining the percentage split of the marital assets, the Court considers such factors as the length of the marriage, the age and health of the parties, and the incomes or potential incomes of each party.

Legal and Physical Custody: Child custody includes many related but distinct concepts including “legal custody” (who will take part in major decisions regarding the medical, religious, and educational welfare of the child) and “physical custody” (where the child will be living and the exact times that each party will have the child in his or her custody). The Court’s polestar in deciding any issue regarding custody is “the best interests of the child.”

Note, however, that your beliefs as to what is in your child’s best interests may differ markedly from those of the Court. You should know that the Court generally believes that the child should have frequent contact with both parents, that both parents should be actively involved in the child’s life, and that each parent should support the other in the role as parent and not say negative or nasty things about the other parent in the presence of the child. The Court does not feel that a parent who is trying to exclude the other parent from the child’s life is acting in the child’s best interest. This is why one parent cannot simply move away from the area with a child unless there is a written agreement signed by both parties or unless a court has allowed the party to move with the child. This is also why the Court rarely awards sole legal and physical custody to one parent.

Even if separated or divorced parents have an informal oral agreement that is working, it is important to protect your parental rights by memorializing those terms in a formal custody agreement. This agreement should be signed by both parties and then forwarded to the court for promulgation as an order. Of course, circumstances change as children grow older and their needs change, so it is important for you to know that Custody Orders and Agreements are at all times modifiable, provided a modification of the order is in the best interest of the child.

Child Support: All parents have a duty to support their children, regardless of whether the parents were married when the child was born. A partial physical custodian usually must pay child support to a primary physical custodian, and an equal shared custodial parent must pay support to the other only if that parent is earning more money than the other parent. It is the parties’ incomes and/or income potentials which are the biggest and most important factors in determining the child support obligation. The base monthly amount of support is usually determined by guidelines set forth by the Pennsylvania Supreme Court. These guidelines consider each party’s net monthly income or income potential as well as the number of children in question. They do not normally consider expenses in determining the base support amount. The guidelines do make adjustments for child care, health and medical insurance premiums, private school tuition, summer camp tuition, and other extraordinary expenses.

Spousal Support, Alimony Pendente Lite, and/or Alimony: In many cases, the courts will order one spouse to pay spousal support or alimony pendente lite (alimony pending the resolution of the divorce) to the other spouse when the parties have separated and before the divorce has been finalized. The amount of spousal support or alimony pendente lite is generally determined by the guidelines set forth by the Pennsylvania Supreme Court and is based on the incomes or income potentials of the parties, just as is child support.

With regard to support after the divorce has been finalized, Pennsylvania does provide that one party may be obligated to pay alimony to the other party. The amount and duration of the alimony award depends upon many factors, including but not limited to the incomes of the parties, the length of the marriage, the age and health of the parties, and the size of the marital estate.

The foregoing is provided for informational purposes only and should not be used as a substitute for legal advice. Please consult with a DBYD family law attorney for advice based on your individual needs.

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