Divorce Frequently Asked Questions

DIVORCE FAQ

How do I get legally separated in Pennsylvania?

There is no “legal separation” in Pennsylvania; rather, you are married until the divorce decree is entered.  Separation, however, is a legal concept that affects certain financial considerations of a divorce.  Generally, the date of separation will be the date you and your spouse begin living separate lives, whether or not you still physically live together.  The date of separation can have a significant impact on the distribution of assets and other considerations in a divorce.  It is important to consult with a knowledgeable attorney to learn how the date of separation is defined in your case and what specific impact it will have on you.

Will I get alimony?

In Pennsylvania, alimony is not automatic.  Rather, the judge will look at various factors to decide whether alimony is appropriate in a specific case.  Some of those factors are: the income or earning capabilities of each party, the length of the marriage and the standard of living established during the marriage.

How much does it cost to get divorced?

It depends.  The cost of a divorce depends on the cooperation of the parties, the complexity of the assets to be divided and a variety of other factors.    

How long does it take to get divorced?

It will take a minimum of 90 days from the date the complaint is served on the other party to finalize the divorce.  The law does not allow the divorce to be finalized before that 90 days expires.  However, most divorces take longer than 90 days.  It is advised that the financial settlement be worked out prior to the finalization of the divorce.  When parties are not cooperating and/or the assets are complicated or need to be valued by some other professional, the divorce proceeding can take much longer.

Can I change my name back to my maiden name?

Yes.  You can elect to resume a prior name as soon as a divorce action is filed.  There is a modest filing fee associated with this filing.

What if my spouse does not want to get divorced?

If one party does not agree to the divorce, virtually nothing will occur for one year after the date of separation.  After one year, the party seeking the divorce can request that the process be moved along through the court system, even without the consent of the other party.

 Does it matter if my spouse cheated on me?

Most Pennsylvania divorce actions are filed under the no-fault section of the statute, making adultery almost irrelevant as it relates to the division of assets.  It could be considered in determining alimony.

Will everything be divided 50/50?

Not necessarily.  Pennsylvania law requires that the marital assets be divided “equitably.”  To determine this “equitable distribution,” the court will look at a variety of factors specified in the law and make a distribution that is “fair.”

 

Note: These are all general answers.  In almost every case, there are specifics of a situation that will complicate the result in a divorce action.  Divorce situations are incredibly personal and individual.  It is important to have a knowledgeable attorney guide you through this process and to answer all of your divorce questions.   Contact The Law Office of Angela Flouras Rieck for your questions about divorce in Lancaster County, PA.

 

Am I married?

Studies have shown that cohabitation without or prior to marriage is increasing in the United States.  The Commonwealth of Pennsylvania is one of few states that still recognizes common law marriages, a union that is deemed a marriage without going through the formal civil or religious ceremony.  However, even in Pennsylvania, the creation of a common law marriage is not without limitation. 

A common law marriage will only be recognized if it was entered into or formed prior to 2005.  Many people believe that if you reside together for 7 years, you are married at common law.  However, there is no magic time frame after which cohabitation will lead to a common law marriage.  Instead, where both parties are available to testify as to whether the marriage exists, proof of a common law marriage is established when there is clear and convincing evidence that the parties exchanged words in the present tense with the purpose of establishing the husband and wife relationship.  The burden of proving a marriage exists, in this situation, is with the party who is claiming the existence of a marriage.  Where the parties are not present to testify (often in the situation where one party is deceased and the other party cannot testify because of a legal rule that says a surviving party cannot testify in conflict with the decedent’s wishes), proof of a marriage is established when there is sufficient proof of cohabitation and reputation of a marital relationship.

In a recent case which shows the importance of a determination of common law marriage, “Wife” filed a divorce action against “Husband,” claiming the parties were married at common law in 2002.  Through this divorce action, Wife was seeking a distribution of the couple’s assets as well as alimony.  In this case the parties had lived together for approximately 23 years, they had a child together, they shared finances, introduced each other as husband/wife, they were beneficiaries on each other’s retirement plans, owned a house together, and otherwise entered into behavior which would be indicative of a marital relationship. 

In support of her position that they entered into a common law marriage on August 28, 2002, Wife presented a document signed by the parties on that date called “Affidavit Attesting to the Existence of Common Law Marriage,” which was required by Husband’s employer to add Wife to the health insurance policy.  The Affidavit document included language that the parties “hereby affirm that we have expressly agreed to and entered into a common law marriage” and other such language.  Both parties testified that they signed the document to get Wife on the health insurance policy.

In reviewing this information, the court found that no marriage existed.  While there was certainly evidence of a marriage-like relationship, there was simply no evidence of the exchange of words necessary to establish that relationship.  Wife could not or did not present any evidence that the words were exchanged.  If she had presented any evidence of that, and Husband denied it or had a contradictory view of the conversation, then the testimony about cohabitation and reputation of marriage could have been used to support Wife’s position.  But, since both parties testified that the words were not exchanged – and the court stated the Affidavit was not sufficient to meet this test because the words were past tense (we “have expressly agreed”) and not present tense – that was the end of the question.

Of course, the determination of whether a marriage exits is a fact-specific one.  With the 2005 benchmark date in mind, presumably a couple who got together in late 2004 and expressly said “I intend to be married to you” or some words along those lines may be married, while, as with the couple in the case discussed above, a couple who got together in 1994 and shared their lives for over 20 years are not.  If you believe you are married at common law and are contemplating divorce, you should contact an attorney who is familiar with divorce and family law. 

Divorce and Equitable Distribution

So often I hear how a particular outcome in a custody, divorce or support matter is “unfair” because my client “knows a guy” who didn’t have to give up as much or got a better custody arrangement or had a significantly different support order.  A client will often compare her situation to a relative, a friend or a co-worker and wonder why things turn out differently for her.  As attorneys, we try to give clients the best advice given the circumstances of each client’s situation, but that will not necessarily be the same as your sister, friend or coworker.  This series of blog posts will attempt to shed some light onto some of the reasons for the differing outcomes in family law cases.

Divorce and Equitable Distribution

In the process of a divorce, the division of marital property in Pennsylvania is governed by the legal concept of equitable distribution (marital property is defined generally as all property acquired during the marriage, regardless of how it is titled).  Essentially, what this means is that the division of marital property be done in a way that is fair (or equitable) to both parties.  This does not always mean a 50/50 split. In fact, the court is not permitted to start with the presumption of a 50/50 split.  Rather, the division is dependent on several factors identified by the legislature that must be considered in making an equitable distribution decision.  These factors, found in the Divorce Code, include things such as the length of the marriage, the opportunity of each party for future acquisitions of capital assets and income and the tax ramifications associated with the division of the assets.  There are many more factors listed by the legislature.  Not all factors identified in the Divorce Code are relevant in every divorce and in some situations some factors are given more weight than others.  Divorce attorneys are typically very familiar with these factors and use them in analyzing a likely or fair division of assets for their clients.

In the context of these factors, a couple’s situation can drastically affect the outcome of the case.  For example, the distribution of the assets in a two year marriage will likely be considerably different than in a 22 year marriage.  Similarly, a couple that is divorcing in their retirement years will likely have a much different distribution scheme than a couple in their 40s who are each working and will continue to generate income and assets.  Other situations which typically affect distribution are the existence and/or number of children of the parties, the existence of a prenuptial agreement and the work and educational history of each party. 

Simply put, family law in general – and equitable distribution in particular – is not one size fits all.  There are intricacies that play in to each and every situation.   In equitable distribution, those intricacies can make a significant difference in the division of marital assets and, as a result, a significant difference in each each party's financial status after divorce.