The Terrible “D” Word

Just the word “divorce” is scary enough for most people, without even the consideration of what the process entails. Add in the myriad issues and problems that could crop up and most people find the entire process to be draining and frustrating. Having an understanding of the process and a lawyer whose practice style aligns with your goals can help alleviate some of the headache involved.

Pennsylvania has two broad categories of divorce – fault and no fault. Under Section 3301(a) of the Pennsylvania Divorce Code, the fault section, the court may grant a divorce to the innocent and injured spouse whenever it is judged that the other spouse has: committed willful and malicious desertion; committed adultery; endangered the life or health of the injured and innocent spouse; knowingly entered into a bigamous marriage; been sentenced to imprisonment for a term of two or more years upon conviction of having committed a crime; or; offered such indignities to the innocent and injured spouse as to render that spouse’s condition intolerable and life burdensome. Most cases do not proceed under a fault divorce because it is time-consuming and costly. In addition, if the court does not find that the injured spouse meets the burden of proof, the divorce will not be granted.

As for no-fault divorce, there are two subcategories, irretrievable breakdown and separation. Under Section 3301(c) of the Pennsylvania Divorce Code, the court may grant a divorce when the marriage is irretrievably broken, 90 days have elapsed from the date of commencement of the divorce proceedings, and each of the parties consents to the divorce. Under Section 3301(d) of the Pennsylvania Divorce Code, the court may grant a divorce where a complaint has been filed alleging that the marriage is irretrievably broken, the parties have lived separate and apart for a period of at least one year and that the marriage is irretrievably broken.

When filing a divorce complaint, in addition to the count for divorce, several other counts or claims are usually included. The most common counts are equitable distribution and APL/Alimony. Equitable distribution is the division of the marital property. When dividing the marital property, the courts consider the following factors:

(1) The length of the marriage.

(2) Any prior marriage of either party.

(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.

(4) The contribution by one party to the education, training or increased earning power of the other party.

(5) The opportunity of each party for future acquisitions of capital assets and income.

(6) The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.

(7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.

(8) The value of the property set apart to each party.

(9) The standard of living of the parties established during the marriage.

(10) The economic circumstances of each party at the time the division of property is to become effective.

(10.1) The Federal, State and local tax ramifications associated with each asset to be divided, distributed or assigned, which ramifications need not be immediate and certain.

(10.2) The expense of sale, transfer or liquidation associated with a particular asset, which expense need not be immediate and certain.

(11) Whether the party will be serving as the custodian of any dependent minor children.

 

Typically, when the court addresses equitable distribution, it will essentially add up the values of all the marital assets and subtract the liabilities to determine the value of the marital estate. Once the value of the marital estate is determined, the estate will be divided.  Assets and debts will be allocated in accordance with whatever percentage the parties have agreed upon or the court has found appropriate based on the equitable distribution factors. A good portion of cases in Pennsylvania are split 50/50, but that is not the case in each circumstance.

The other common count is for APL and alimony. APL is short for Alimony pendente lite, which is support for the duration of the divorce proceedings. APL is awarded to equalize the parties’ ability to maintain or defend the divorce action. The general formula to calculate APL is to subtract the lower earner’s monthly net income from the high earner’s monthly net income. The difference is then multiplied by 40% to arrive at the preliminary support amount.

Alimony, on the other hand, is an order for support after the divorce is finalized. Alimony is not calculated on a formula but the courts take into consideration seventeen factors when considering an alimony award. These factors are:

(1) The relative earnings and earning capacities of the parties.

(2) The ages and the physical, mental and emotional conditions of the parties.

(3) The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.

(4) The expectancies and inheritances of the parties.

(5) The duration of the marriage.

(6) The contribution by one party to the education, training or increased earning power of the other party.

(7) The extent to which the earning power, expenses or financial obligations of a party will be affected by reason of serving as the custodian of a minor child.

(8) The standard of living of the parties established during the marriage.

(9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.

(10) The relative assets and liabilities of the parties.

(11) The property brought to the marriage by either party.

(12) The contribution of a spouse as homemaker.

(13) The relative needs of the parties.

(14) The marital misconduct of either of the parties during the marriage.

(15) The Federal, State and local tax ramifications of the alimony award.

(16) Whether the party seeking alimony lacks sufficient property to provide for the party’s reasonable needs.

(17) Whether the party seeking alimony is incapable of self-support through appropriate employment.

 

The process for the divorce proceedings can take months or it can take years. Once the divorce is filed, the parties typically undergo discovery, which consists of the parties gathering and exchanging information. There are two types of discovery that can be conducted – informal and formal. Informal discovery means the parties cooperate with one another and provide documents and statements regarding assets and liability. Formal discovery consists of Requests for Production of Documents and Interrogatories. Interrogatories are a list of questions sent to a party that must be answered under oath. 

After discovery is complete, most divorce cases proceed into the negotiation phase. During this time the parties will typically exchange offers in an attempt to settle the case. If the parties are able to reach an agreement, a document will be drafted that reflects the agreement and the divorce can be finalized. If the parties are unable to reach an agreement, one party will usually file to have a master appointed to the case. The master will attempt to facilitate an agreement and if he or she is not able to they will conduct a hearing. The master will then issue a recommendation as to how the case should be resolved. Typically, the economic claims of equitable distribution and alimony must be resolved before a divorce can be finalized.

Unfortunately, for most people, the process of divorce is one of the most difficult and trying experiences in a person’s life. Anyone who is considering or going through a divorce should consult with an experienced local attorney to ensure that his or her rights are being protected. The right attorney can be an advocate for a person going through a divorce and alleviate much of the stress that comes from navigating an unknown and emotionally charged situation.

Julie J. Marburger, Esquire, is an attorney at the law firm of Wolf, Baldwin and Associates, P.C. She practices in the firm’s Reading, Pottstown and West Chester offices.  In 2014, she received the Select Lawyer award for her practice in Family Law. In 2016, she was named as a “Rising Star” by Super Lawyers Magazine in the area of Family Law. She may be reached by telephone at 610.374.2400 or by e-mail to jmarburger@wolfbaldwin.com.

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