Divorce Steps Questions & Answers
What are the grounds for divorce?
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.
What are the fault grounds for divorce?
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 leads 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 in seeking a fault divorce which you can discuss with one of our divorce lawyers.
Should I seek a divorce on fault grounds because my spouse committed adultery?
This is another complicated decision that you need to make after discussing your situation with divorce attorney Kate Vetrano. 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. Divorce attorney, Kate Vetrano, 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.
What does it mean to be separated?
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.
Can I be separated and live in the same house?
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.
What happens when you are separated?
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 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.
Are there different rules if a couple is separated living in the same house?
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 for 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.
When should I file a divorce complaint?
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.
Does it matter who files the divorce complaint?
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.
What do I ask for in a divorce complaint?
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 other spouse
- Award child support
- Award alimony pendente lite during the period of time until the divorce if 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
If my spouse files for divorce, can I file a counter-suit for divorce?
Yes, if your spouse files for divorce, you can file a counterclaim asking for any relief provided in the Divorce Code.
What can I do if I don’t want a divorce and my spouse has filed a complaint for divorce?
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.