State Of Pennsylvania Divorce Law

About This Article

This article covers the primary divorce laws and rules that govern the divorce process in Pennsylvania and includes summary discussions on the following legal topics:

• Pennsylvania Residency Laws to File for Divorce
• Pennsylvania Legal Grounds for Divorce
• Pennsylvania Division of Marital Property
• Pennsylvania Division of Child Custody
• Pennsylvania Child Support
• Pennsylvania Spousal Separation
• Pennsylvania Divorce Mediation
• Name Change Request

Introduction

Did you know that Pennsylvania’s divorce rate is lower than the national average and that more people are getting married than divorced in Pennsylvania? It’s true.

According to the CDC, Pennsylvania’s most current divorce rate (2019 -2022) is 2.2 per 1,000 residents, while the national average for this period is 2.7 divorces per 1,000 residents. The marriage rate is 5.6 per 1,000 residents.

Historically, Pennsylvania has had deep roots in American law.

Pennsylvania is not only the birthplace of the United States legal system but also where the Declaration of Independence and the U.S. Constitution were debated and adopted.

This article summarizes Pennsylvania’s family laws, including the laws and processes of the state’s divorce courts, the rules covering the legal grounds for divorce, child custody and support, spousal support, separation, and the division of marital property.

We begin our summary with the Pennsylvania residency requirements that legally qualify someone intending to file for divorce in the state.

Pennsylvania Residency Requirements

In Pennsylvania, the residency requirement for filing a divorce is to ensure the court has jurisdiction to hear the case and the judicial authority over the parties to the divorce.

It is also the critical first step in the divorce process in Pennsylvania.

Residency requirements:

At least one of the spouses must have been a Pennsylvania resident for at least six months (180 days) immediately before filing for divorce.

The divorce can be filed in the county where either spouse resides or where the couple last lived together so long as one spouse still resides in that county.

If one spouse lives out of state, the Pennsylvania resident spouse can still file for divorce in Pennsylvania as long as the residency requirements are met.

Active Duty Members: For active duty military members stationed in Pennsylvania, the time stationed in the state can count towards the residency requirement.

Pennsylvania Legal Grounds for Divorce

No-fault and fault-based divorces

Pennsylvania allows spouses to file under no-fault or fault-based grounds for divorce. No-fault divorces are generally more straightforward to complete and less adversarial.

In contrast, fault-based divorces are highly contentious and require proving specific spousal misconduct.

No-Fault Divorce

No-fault divorces are based on the assertion that the marriage is irretrievably broken without blaming either spouse.

Both parties must submit affidavits affirming their consent to the divorce based on their individual assessment that the marriage is irretrievably broken.

After filing under the state’s no-fault law, there is a mandatory three-month waiting period before the court can finalize the divorce.

Fault-Based Divorce

Fault divorces require one spouse to prove that the other spouse’s misconduct was the cause of the breakdown of the marriage.

The Grounds For Fault-Based Divorce in Pennsylvania Include:

• Desertion is legally defined as the willful and malicious absence from the marital home for at least one year without a reasonable cause.
• Adultery: Legally defined as engaging in a voluntary sexual relationship with someone other than the spouse.
• Extreme Cruelty: Legally defined as one spouse endangering the life or health of the spouse through physical or emotional abuse.
• Bigamy: Legally defined as one spouse being legally married to another person at the time of the current marriage.
• Imprisonment: Legally defined as one spouse having been sentenced to imprisonment for two or more years.
• Indignities: Legally defined as conduct that makes the life of the innocent spouse intolerable and burdensome, such as constant verbal abuse, humiliation, or neglect.
• Severe Mental Disorder: Divorce can also be granted if one spouse has been confined to a mental institution for at least 18 months before the filing and there is no reasonable prospect of discharge.

Pennsylvania Division of Marital Property

Pennsylvania follows the equitable distribution of marital property rather than the strict 50/50 split followed by community property states.

To better understand how property is divided in divorce, we must first know the meaning of marital property, which requires an understanding between spousal community property and separate property. Let us explain:

Marital Property

Marital property is defined as all property acquired by either spouse during the marriage, regardless of whose name is on the title. This can be any form of personal or real property retirement and investment accounts.

Separate Property

Separate property belongs to one spouse and is not subject to division.

Separate property includes all property acquired by either spouse before the marriage or as gifts and inheritances received by one spouse during the marriage.

The Risk of Commingling Property: If separate property is mixed with marital property or used for marital purposes, it can change into marital property. For example, one spouse uses their separate property money and deposits it into a joint bank account during the marriage. In that case, the separate property will be converted into marital property.

Equitable Distribution of Marital Property

Factors Considered in Determining Equitable Distribution of Marital Property:

• Longer marriages usually result in a more equal division of property.
• Whether there were previous marriages and any obligations arising from them.
• Both spouses’ ages, health conditions, incomes, and earning capacities.
• Both financial and non-financial contributions, such as homemaking and child-rearing.
• The standard of living that was established during the marriage.
• Each spouse’s economic circumstances at the time of division, including future financial needs and opportunities.
• The education, vocational skills, and employability of each spouse.
• The needs of the custodial parent if there are minor children.
• Anticipated future financial needs and liabilities.
• Potential tax implications of the property division.
• Any other factors the court deems relevant to achieving a fair and equitable distribution.

Presence of Prenuptial or Postnuptial Agreements: If the spouses have a legally valid prenuptial or postnuptial agreement, it will typically govern the division of the property.

Pennsylvania Division of Child Custody

The courts consider various factors to determine custody arrangements based on which parental arrangement will be in the child’s best interests.

Two Types of Child Custody are Legal and Physical Custody:

Legal Custody:

This gives the spouse granted legal custody the right to make all major decisions about the child’s life, including education, healthcare, and religious affiliation.

Apportioning Legal Custody: 

• Sole Legal Custody is when the court grants one parent the exclusive right to make these legal custody decisions.
• Shared Legal Custody is when the court grants both parents the right to share legal custody decision-making responsibilities.

Physical Custody:

Physical custody means the right of a parent to have their child live with them.

Four Primary Types of Physical Custody:

• Primary Physical Custody: This is when the child lives with one parent most of the time.
• Partial Physical Custody: This is when the child lives with the non-custodial parent for a minority of the time.
• Shared Physical Custody: The child spends significant time living with both parents.
• Sole Physical Custody: The child lives exclusively with one parent.

The parental factors courts consider in dividing child custody:

Pennsylvania courts will consider a variety of factors to determine what type of parental arrangement will be in the best interests of the child, including:

• Each parent’s role in performing parental duties and responsibilities.
• The need of the child for stability and continuity in their education, family life, and community.
• The child’s relationships with siblings and the potential impact of custody arrangements on these relationships.
• The child’s relationships with extended family members.
• The child’s preference, considering their maturity and judgment to make such preferences.
• Each parent’s availability to care for the child and willingness to cooperate with the other parent.
• The proximity of the parents’ homes and the ease of maintaining a stable routine.
• The mental and physical health of all individuals involved.
• Whether either parent has a history of abuse or history of drug or alcohol addiction.
• The quality of the existing relationship between the child and each parent.

Watch Gross McGinley Family Law Attorney Kellie Rahl-Heffner explain the child custody process:

Modification of a child custody order

Child custody orders can be modified if the parent can show a significant change in circumstances affecting the child’s best interests. Either parent can file a petition to modify the order, and the court will review the new circumstances to determine if a change is warranted.

Pennsylvania Child Support

In Pennsylvania, child support laws are intended to ensure that both parents contribute financially to the upbringing of their children following a divorce or separation.

Pennsylvania uses specific guidelines to calculate child support, which is based on the child’s needs while balancing the financial responsibilities of both parents.

Child Support Guidelines

Pennsylvania uses an Income Shares Model to calculate child support. This model considers both parents combined gross income and allocates the support amount proportionally based on each parent’s adjusted net income.

Additional child expenses:

If additional expenses exist, such as childcare or healthcare, these amounts would be added to the basic support obligation and allocated proportionally.

Modification of a child support order

The parent must petition the court to modify the support order. The court will schedule a hearing to review the alleged new circumstances.

The court will consider modifying the support order if there is a significant change in circumstances, such as:

• A substantial change in either parent’s income.
• Changes in the child’s needs (e.g., medical or educational expenses).
• Changes in custody arrangements.

Pennsylvania Spousal Separation

In Pennsylvania, a couple can be separated but still technically married. Separated couples may enter into a legally binding agreement that states the terms of the separation.

The separation agreement is considered a postnuptial agreement, which becomes legally binding when signed by both parties.

The separation date is crucial in Pennsylvania divorces as it marks the end of the marital relationship and affects several aspects of the divorce process, including property division and eligibility for no-fault divorce.

Pennsylvania Divorce Mediation

Mediation is generally a voluntary process, meaning both parties must agree to participate. However, in some jurisdictions within Pennsylvania, the court may require mediation for specific issues, particularly those involving child custody and visitation.

Mediation typically involves multiple sessions where the mediator helps the couple negotiate and settle the terms of their divorce, including property division, child custody, and support obligations.

Name Change of Spouse

Changing a name as part of a divorce proceeding in Pennsylvania is straightforward. You can request the name change at the beginning of the divorce process by including it in the divorce complaint or by filing a petition with the court after the divorce.

Once the name change is legally approved, the spouse must update the new name on all personal identification and official documents, such as their passport and driver’s license.

Sources and References

Pennsylvania Divorce Statutes Title 23

CDC Divorce Rates and Statistics

Divorce Law In Pennsylvania

State of Pennsylvania Website

Cornell Law Information Institute

References:

What are the grounds for a fault-based divorce in Pennsylvania? | Law Offices of Don J. Solomon.

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