Couples facing divorce have many concerns. Is there a best time to file for divorce? What do I need to do to be legally separated? These and many more questions cause worry and confusion, so our family and divorce lawyers have compiled answers to some of the divorce FAQs we hear. Contact a Vetrano | Vetrano & Feinman family law attorney for more information and a consultation.
No fault grounds for divorce can be established by mutual consent of the parties or unilaterally. For a mutual no-fault divorce, both spouses sign and file affidavits of consent with the court, ninety days after the filing of a divorce complaint. If one of the spouses does not agree to a no-fault divorce, the other spouse can still get a no-fault divorce by filing an affidavit with the court after the parties have been living separate and apart for the required length of time. That length of time is two years if the parties separated prior to December 5, 2016, and one year if the parties separated after December 5, 2016.
The court may grant a divorce to an innocent and injured spouse on fault grounds whenever the court finds that the other spouse has:
- Committed willful and malicious desertion and absence from the other spouse without reasonable cause for a period of one or more years. If you are concerned about whether you can separate from your spouse, without desertion, you may discuss your particular situation with our divorce lawyers.
- Committed adultery. If you believe that your spouse has committed adultery, you may want to decide if seeking a divorce for adultery is in your best interests. You can discuss the pros and cons of divorce on the grounds of adultery with our divorce lawyers.
- By cruel and barbarous treatment, endangering the life or health of the innocent and injured spouse.
- Knowingly entered into a bigamous marriage.
- Been sentenced to imprisonment for two or more years.
- Offered such indignities to the innocent and injured spouse as to render that spouse’s condition intolerable and life burdensome. (Indignities are very broad and diverse. You may want to discuss confidentially with one of our divorce lawyers the facts and circumstances of your marriage that lead you to believe that you should proceed with a fault divorce based on indignities.)
Whether seeking a fault divorce under these grounds, provided in the Divorce Code, is right for you is a very personal decision. There are pros and cons to seeking a fault divorce which you can discuss with one of our divorce lawyers.
This is another complicated decision that you need to make after discussing your situation with one of our divorce attorneys. There are strong reasons for seeking a divorce based on adultery and there are other reasons why filing for adultery may not be right for you.
There are certain defenses that your spouse can bring if you file a divorce based on adultery. Under the divorce code, it is a good defense and a perpetual bar against an action for divorce based on adultery, if your spouse alleges and proves that you have been guilty of adultery, too. You have forgiven the adultery, also, by welcoming your spouse back into your marriage in “conjugal society” or embrace after you found out about the adultery.
Every situation is different. We can discuss confidentially the adultery in your marriage to help you decide how you want to proceed and whether you want to hire a private investigator to find out about the adultery.
You are separated from your spouse when you cease living together as husband and wife. The fact that you want to live separate and apart from your spouse should be communicated. If you separate from your spouse for other reasons, you may not be deemed living separate and apart for establishing the required time for separation to proceed with a divorce. A letter from your divorce lawyer to your spouse stating that you intend to live separate and apart should be sufficient to establish your date of separation. Sometimes telling a spouse that you want to have some space to find yourself, or for other reasons, coupled with conduct, may not be sufficient to establish a date of separation.
The filing of a divorce complaint and serving the divorce complaint on your spouse will always determine the latest date of separation.
A married couple can be living separate and apart in the same house. There are certain rules of conduct that must be associated with the separation of a couple in the same house. There must be communication between the spouses about the meaning of the separation in the same house. For example, if a couple takes separate bedrooms simply because one of the spouses snores, that may not establish a date of separation for the purpose of a divorce.
In Pennsylvania, there is no “legal” separation but married couples separate and when they do, there are legal results. Once a married couple separates, rights and obligations are created by law. Income earned after separation is no longer is part of the marital estate or marital “pot”, which would be shared if earned after marriage but before final separation of the couple. Conversely, obligations incurred after separation, such as credit card charges, may only be the obligation of the spouse making the charge. Of course, there are certain exceptions, which you can discuss with your divorce lawyer. An obligation to provide spousal support or child support to a spouse and children could arise after a couple separates depending on the circumstances. To determine if you have a right to spousal support or to child support after separation, review the circumstances with one of our divorce lawyers. Keep in mind that rights to spousal support or even to child support can be lost if you don’t make the appropriate request for support.
In Pennsylvania, there is no form or paperwork that needs to be filed with the Court to achieve a legal separation. It simply needs to be clear that one (or both) parties plans to move forward with a divorce. If a divorce complaint has already been filed, then that could be your date of separation. However, it is very likely that separation may have occurred prior to that, although not a physical separation. Parties can live separate and apart under the same roof during the entire pendency of a divorce, as is often the case due to financial reasons and the inability of parties to be able to sustain and afford two households, prior to the distribution of the marital estate. In fact, you might already be separated and not even be aware. Our divorce attorneys will be able to assess your situation and either confirm that you are already legally separated from your spouse or provide you with the tools to achieve such a separation. Your date of separation is most relevant for the valuation of the marital estate, which our family lawyers will evaluate for you in determining what there is to be divided and what you may or may not be entitled to receive as part of the divorce settlement.
The rules concerning the ownership of income earned after separation or the obligations incurred after separation should not change for a couple living separately in the same house. However, a spousal support or child support order will not issue if the needs of the family are being met. Living separately in the same house poses many challenges to a divorcing couple. It’s not right for every family. Consideration must be given to the effect that this situation is having on the children living in a house with divorcing parents. Rules of conduct and boundaries must be established for the family. Unmet expectations cause problems. Obligations and responsibilities must be defined. Time with the children may also be divided. If you plan to separate and continue to live in the same house, you need to discuss your situation with one of our divorce attorneys for guidance.
The timing of the filing of a divorce complaint can be complex. A spouse may want to establish a date of separation by filing and serving a divorce complaint. A spouse may want to demonstrate the determination he or she has in proceeding for a divorce. Another spouse may want to delay the filing of a divorce in the hopes of reconciliation. Timing issues in filing a divorce complaint can be discussed with one of our divorce attorneys.
For the most part, it doesn’t matter which spouse files a complaint for divorce, although there may be important reasons determining when you need or want to file a divorce complaint. The divorce code provides remedies and relief to divorcing couples. It may be important for you to take advantage of the protections offered by the divorce code.
The rules of court for divorce actions delineate what relief may be requested in a divorce complaint. In addition to asking the court to enter a divorce decree under the no-fault or fault grounds under the Divorce Code, you may ask the court, among other things to:
- Equitably divide the marital property acquired during the marriage
- Award spousal support to a spouse with lower income than that of the other spouse
- Award child support
- Award alimony pendente lite during the period of time until the divorce is granted
- Freeze the marital assets
- Maintain the beneficiary designations on life insurance policies
- Award alimony after the divorce is granted
- Require one spouse to pay the other spouse’s counsel fee or attorney fees
- Approve any settlement agreement reached by the divorcing couple
Yes, if your spouse files for divorce, you can file a counterclaim asking for any relief provided in the Divorce Code.
If your spouse is seeking a no-fault divorce, you can ask the court to order your spouse to go to marriage counseling with you. Many times, your spouse’s attorney will recommend to your spouse to attend three counseling sessions with you if you ask.
The court may award to the husband or the wife the right to reside in the marital residence exclusive of the other spouse. A petition for exclusive possession of the marital home must be filed with the court after the divorce complaint has been filed. Our divorce attorneys will discuss your situation to advise you of the likelihood of having a judge order your spouse to leave the marital home while the divorce is pending.
If both husband and wife agree that a divorce can be granted before the remaining property and alimony issues are resolved, they can ask the court to bifurcate the divorce, that is permit the divorce to be entered while the court retains jurisdiction to resolve the outstanding issues. If both parties don’t agree to bifurcate the divorce, the spouse seeking the divorce, for example, because he or she wants to remarry, a petition can be filed with the court seeking a bifurcated divorce. Before bifurcating a divorce, by finalizing the divorce decree and reserving the property and alimony issues for resolution at a later date, you will need to discuss with a divorce attorney the many protections that need to be put in place concerning life insurance, retirement benefits, and other economic interests.
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Our experienced family lawyers take the time to fully understand the financial and emotional complexities that can be involved in separating two lives. We offer the patience and resources to effectively guide clients through a divorce, addressing all the challenges they may face in moving forward with their lives. To learn more information about divorce FAQs and about how we can help protect your rights and interests in a divorce, contact the Pennsylvania divorce attorneys at Vetrano | Vetrano & Feinman LLC.