The following contains answers to commonly asked questions in family law. Click on the question below to view the answer:
Not all divorces end up in court. In fact, many people go through the entire divorce process without ever setting foot in a courtroom. If a divorce settlement is reached without any issues, there is no need to go to court at all, and it becomes a matter of simply filing the paperwork. That being said, there are many reasons why you could end up in court, particularly if your divorce has become contentious. You could need to go to court to ask the judge to order the other side to hand over financial documentation, for example. Sometimes, going to court isn’t necessarily a bad thing; many counties have procedures in place where the court will actually facilitate the process of settling your divorce by holding settlement conferences and making recommendations about settlement.
There is no right or wrong answer to this question. Many people tell their spouse they want a divorce before ever meeting with an attorney. Many people meet with an attorney first, to get a sense of their rights and obligations and what the process will look like. Oftentimes, a person will meet with an attorney, who will prepare and file a divorce complaint, and then let their spouse know that they are planning to file for divorce. Each situation is different, and it is up to you how you want to approach it. However, if you think that your spouse will react negatively, or retaliate against you for filing (by draining the bank accounts, telling the children, etc.), it makes sense to meet with an attorney first, so that you can make a plan to prevent or minimize retaliation.
The length of time it takes to get a divorce depends on a number of factors. Some of these factors include whether or not you and your spouse agree to divorce, and whether or not you and your spouse agree to the division of your assets and debts. Generally, the more you and your spouse agree, the faster the process will be. Even if you and your spouse have agreed to a settlement, there is still a mandatory 90-day waiting period after filing before you can finalize your divorce. If your spouse does not agree to get a divorce, you can generally force them to move forward with the divorce if you have been separated for l year. Other factors that may affect the length of time it takes to get a divorce are whether your spouse has hired an attorney, or even what county you are getting divorced in. Every scenario is different, and a divorce attorney will be able to give you a better picture of what to expect.
These three terms refer to payments from the higher-earning spouse to the lower-earning spouse at different points during the divorce process. Spousal support refers to payments during the period of separation but before a divorce complaint is filed. Alimony pendente lite refers to payments after the divorce complaint is filed but before the divorce decree is entered. Alimony refers to payments from one former spouse to the other after the divorce decree is entered. Alimony is generally addressed as part of the parties’ property settlement agreement or final divorce order.
Spousal support and alimony pendente lite are calculated according to a mathematical formula pursuant to the Pennsylvania support guidelines. The calculation is based on each spouse’s respective income and/or ability to earn income. Generally speaking, a dependent spouse is entitled to support from the spouse that earns the higher income. In some circumstances, there may be a reason to “deviate” from the mathematical calculation by establishing a greater or lesser need for support.
You may become entitled to alimony after the entry of the divorce decree, however, it is not automatic. Post-divorce alimony is calculated based on a list of 17 factors set forth in the Divorce Code. Some of these factors include the length of the marriage, each party’s sources of income, and the standard of living during the marriage. There is no mathematical formula, and each case is slightly different.
There is no law in Pennsylvania that says that a spouse is entitled to one year of alimony for every three years of marriage. This is a general concept that is sometimes used as a starting point for negotiations. There could be any number of reasons why the term of alimony should be longer or shorter than this. Generally, however, the longer the marriage, the better the dependent spouse’s case for alimony.
In the past, alimony payments were deductible to the spouse making the payments and includable in the income of the spouse receiving the payments as taxable income. At the end of 2018, the law changed, and alimony payments were no longer deductible to the payor or income to the payee. This new law applies to alimony orders and agreements entered on or after January 1, 2019.
Physical custody refers to which parent has actual custody of the children at any given time. Parents can either have sole, primary, or shared physical custody. Legal custody refers to the right of the parents to make important decisions about the child regarding their health, religion, and education. If parents have joint legal custody, they both have this right, and they must reach an agreement with each other before making any big decisions about the children. If only one parent has sole legal custody, that parent does not need to consult with the other parent before making a decision that affects the children’s health, education, or religion.
There are 16 different custody factors that the court looks at when determining custody, including, among other things, the parental duties performed on the child’s behalf and each parent’s availability to care for the child or make childcare arrangements. The court will also look at a parents’ history of drug and alcohol abuse and/or any mental issues one parent may have. Ultimately, after considering each of these 16 factors, the judge makes a custody determination based on the “best interests” of the children.
No. There is no presumption in Pennsylvania that a mother should be awarded primary custody over the father. It is very common for parents to have 50/50 shared physical custody schedules.
Yes, one of the custody factors is the “well-reasoned preference” of the child. However, the child’s preference is just one factor in making a custody determination. Generally, the older a child is, the more likely the court will be to consider his or her preference. Depending on the child’s age, the judge may request to interview the child as part of the process of determining custody. However, it is important to remember that parents don’t always go to court to determine custody, oftentimes, parents reach a custody agreement outside of court.
Yes. Even if a parent fails to pay child support, they are still entitled to custody of their children, in accordance with the custody order or agreement. If the other parent is behind on his or her child support, this needs to be dealt with in support court, not custody court. Parents are obligated to follow the custody order or agreement, whether or not the other parent is paying child support.
Child support is calculated based on each parent’s income (or ability to earn income) and the number of children involved. The court then calculates support based on state-wide support guidelines. Each parent has the right to make arguments regarding the other parent’s actual income, ability to earn income, or reasons why the guideline amount is either incorrect or should be higher or lower than the calculated amount.
Yes, child support can be modified if there is a change in circumstances since the entry of the order, such as if one parent loses a job. Child support can be modified either by the agreement of the parties, or if one parent files a petition in court. A petition to modify support in Pennsylvania must be filed as soon as possible once a party experiences a change in circumstances, since changes to support will typically only be retroactive to the date the petition was filed.
The court must address who pays the children’s health insurance as part of the support order. If health insurance is available from one parent’s employer at a reasonable cost, the court will generally require that parent to maintain health insurance for the child. The parents then split the amount of the premium in proportion to their respective incomes. If health insurance is not available through the parents’ employers, the court can order that the parents apply for CHIP.
If one parent needs childcare to be able to go to work or school, the parents will typically be ordered to share the cost of childcare in proportion to their respective incomes.
A child support order generally ends when a child turns 18 or when the child graduates high school, whichever comes later. A child support order can also, in some cases, be extended past the age of 18 if the child has special needs. In Pennsylvania, parents are not required to pay for children’s college costs unless that was agreed to as part of a divorce settlement.
People who have experienced abuse or threats of abuse by family or household members qualify for PFA orders. Family or household members include your husband or wife, ex-husband or ex-wife, your brother or sister, your parent or child, someone with whom you have a child in common, another family member, or a current or former sexual partner. Abuse is defined as attempting to cause or causing bodily injury or placing another in reasonable fear of serious bodily injury. You can get a PFA order on behalf of yourself or your children.
The first step in getting a PFA order is to file a petition for protection from abuse in the courthouse in the appropriate county. In the petition, you will explain the events that caused you to seek a PFA order. A judge will review the petition and may grant you a temporary PFA order. A full hearing, which you and the defendant will both attend, will be held within 10 days, at which point the judge may grant or deny the final PFA order.
You will be “served” with the Plaintiff’s petition for PFA, the temporary PFA (if one was granted), and the hearing date for the full hearing (the hearing notice). The police will serve you with this paperwork. If you are served with PFA paperwork, you should contact an attorney right away, so that you can begin preparing for the hearing, which must be held within 10 days.
Each side will tell the judge what happened. The Plaintiff will explain why he or she needs a PFA order, and the defendant will be allowed to tell their side of the story as well. Both parties will be able to cross examine the other side if they want to. The judge may ask both parties questions as well. Each side may bring witnesses or other evidence, such as photographs. The judge will generally decide at the end of the hearing whether or not he or she will grant the petition for PFA. A judge can include certain temporary custody provisions in the PFA as well.
It is very important to follow the requirements of the PFA order. A violation of a PFA order can result in criminal contempt of court, including up to 6 months in jail, and a fine of up to $1,000. If you are confused about what your PFA order says, you should contact an attorney immediately, so that you are not held in criminal contempt.
Yes. You and your fiancé each have separate interests that need to be protected, and you should each have your own separate attorney. A prenup that is drafted by an attorney representing both parties can later be held to be unenforceable. This does not prevent one party from representing him or herself, however, but it should be made very clear in the agreement that the drafting attorney only represented one party.
A prenup will typically set forth exactly what will happen to a couple’s assets at death or divorce. A prenup can address the percentage of the assets each spouse will receive in case of divorce. A prenup can also address the amount or duration of alimony one spouse will receive, or whether one spouse will pay the other’s attorney fees. It is critical that both parties fully disclose all of their existing assets, debts, and income as part of the prenup. A disclosure statement listing each asset and debt individually, along with proof of income for each party, should be attached to the end of a prenup.
You should meet with an attorney as early as possible before the wedding to allow plenty of time to draft the agreement (including your financial disclosure), show it to your fiancé, and negotiate any changes. The process of preparing a prenup can be stressful, and it is the last thing that you want to worry about in the final days before your wedding.