Pennsylvania Divorce Questions
Wilkes-Barre divorce attorney Jonathan Comitz at Comitz Law Firm, LLC, provides answers to Frequently Asked Questions about divorce in Luzerne County and Lackawanna County.
How long must I have lived in Pennsylvania prior to filing for divorce in a Pennsylvania court?
You must be a resident of Pennsylvania for six months before filing for divorce in the Commonwealth. You have the option of filing for divorce in the county in which you reside, provided you have lived there for at least six months, or the county in which you resided while you were married, provided your spouse still lives in that county.
What are the terms used to identify the parties in a divorce proceeding?
The party who files for divorce is referred to as the Plaintiff and the person against whom the divorce is filed is referred to as the Defendant. These terms are largely for identification purposes only, as the Defendant has the opportunity to file what is called a Counterclaim to preserve rights such as child custody, alimony, and requesting a court to equitably divide marital property.
What is meant by “grounds for divorce”?
There are two kinds of divorces, no-fault and fault. A no-fault divorce occurs where the parties have consented to a divorce decree or they have lived separate and apart for two years and the marriage is irretrievably broken. A fault divorce typically requires willful desertion, adultery, or some form of physical or emotional abuse. Fault grounds must be alleged in the divorce complaint. Fall divorces are becoming increasingly rare in Pennsylvania, and generally there must be special circumstances to pursue a fault divorce. The vast majority of divorces in Pennsylvania proceed on no-fault grounds, where the parties state the marriage is irretrievably broken.
On what basis does the court decide how marital property is divided?
The courts have a great deal of discretion when it comes to dividing marital property. Although often times the goal is to divide the marital property equally between spouses, the courts will look at the contribution of one spouse or the other to the property at issue. The courts will also consider the fairness of the distribution. For smaller marital estates, it is more likely the property will be divided evenly.
How long will it take me to get divorced?
This depends on many factors, with the two most important factors being the response of the other party in a divorce action and the size of the marital estate. If the parties have an agreement prepared as to division of property and both want to be divorced as quickly as possible, a no-fault divorce is the fastest way to proceed. In a no-fault divorce, once the Divorce Complaint has been filed and the Defendant accepts service of the Divorce Complaint, the parties are required by the court to wait 90 days. This is called a “cooling off” period. After the 90 days have elapsed, the parties must both sign a series of waivers and affidavits, and after that is accomplished the parties may petition the court to enter a Divorce Decree.
If I leave my home and live in a separate residence, am I “legally separated”?
You may be considered legally separated, but you are still married. The “date of separation” refers to the time that one spouse makes a definitive decision that they no longer want to be married and in fact do not consider himself or herself married to the other spouse. It is possible to be “separated” and still living in the same house for a period of time. Often times the date of separation is when one spouse moves out of the marital residence. The date of separation is important in part because that is the date in which property acquired by each spouse ceases to be marital property and becomes separate property.
Do I have to have the economic issues of my divorce resolved before the Court will divorce me from my spouse?
No, but it is rare that a divorce is granted before the economic issues, such as equitable distribution of marital property, are resolved. The default rule is that once a Divorce Decree is entered, the parties waive all rights to marital property that hasn’t been divided. It is possible to accomplish what is called a “bifurcation” of the divorce. Bifurcation refers to separating the divorce itself and the related economic issues; it allows the parties to get divorced while still preserving financial issues to be resolved at a later date. Courts rarely grant bifurcation unless there are compelling circumstances, i.e. one party desires to be remarried quickly.
In family law cases, timing is extremely important. You need to act quickly and we can meet with your for a free consultation to advise you of your rights and answer your questions. Attorney Comitz will take the time to understand the issues you’re faced with and help establish long-term goals and solutions for you and your family.