People who live together without being married do not have automatic spousal inheritance rights, so the advice of a lawyer is crucial in correctly preparing the Will and other aspects of the estate plan of such couples. Some people make a contract ("pre-nuptial agreement") before they get married. The pre-nuptial agreement would normally settle all economic questions relating to a divorce, so both parties know what to expect if they split up. While somewhat unromantic as it deals with the possibility of separation, it is advisable if the parties have children from other liaisons, or if one of the parties is much wealthier then the other. Pennsylvania, unlike many other states, tends to favor pre-nuptial agreements, as long as the wealth of each party is fully disclosed, so... read the fine print! Or hire a lawyer to do it.

MARRIAGE

Of course, you must first be married to get divorced. Being married, whether by ceremony or by "common-law," gives a person important privileges in tax law, joint property ownership, and inheritance rights. Pennsylvania has extended the valuable marital concept of real estate in "tenancy by the entireties" to personal property as well, so marriage in this state can provide great legal benefits. Pennsylvania recognizes "common-law" marriages, but it is NOT true that this occurs by living together for seven years. Someone who thinks they are married by "common-law," should talk to a family law attorney as to whether a marriage exists and what must be done to protect or claim these rights. Besides "divorce," Pennsylvania also permits "annulment" of marriages. However, the conditions for a civil annulment are quite strict and even dramatic (legal consent was lacking, a party is impotent or already married, or the parties are related as first cousins or closer), and unlikely to be met, except for unanticipated sterility. Non-consummation is not a ground. People who have heard of ecclesiastical annulments, especially those of the Catholic Church, must realize that the requirements for a civil "annulment" are different. Also, Catholics who have divorced and remarried may not need to divorce again to regain communicant status: Attesting that one will be living together as "brother and sister", rather than conjugally, may be sufficient; consult your parish priest.

SEPARATION

Unlike some other states, Pennsylvania has no court proceeding to officially create a spousal separation. A "final separation" is a question of fact: are the spouses living apart, with BOTH knowing that one has left with the intention of not returning? Thus, staying away in an ambiguous way will not of itself start a separation. Also, if a couple are apart because of business or personal reasons, but intend to re-unite, that is certainly not a "final separation”. Separation is not "abandonment" or "desertion," which in its legal meaning is a rare occurrence.

The couple may agree to separate, or one spouse may simply separate from the other without asking the other. Either way, the spouses are considered separated. Separation occurs when the spouses keep separate households, even if circumstances force them to live in the same house. The law will require at least separate finances and living quarters, even if in the same house, for a couple to be deemed separated.

Four important legal changes begin on the date of separation:

1)    A spouse may date, and even have sexual relations with, someone else without the romance being considered adultery in civil court. And leaving one's child with a baby-sitter to go on a date is not "abandonment” despite what some controlling spouses may say.
2)    One of the two kinds of "No-Fault" divorce becomes available two years after the date of final separation.
3)    Property earned after the date of separation is not marital property, and will not be taken away by the divorce court, although it can be considered in the division of the marital property, and it can be taken in support.
4)    Spouses have a right to demand financial support from each other.

A couple can remain separated without ever filing for a divorce. No one is ever obligated to start a divorce action. However, unless they have either gotten a divorce or signed an agreement, each spouse has a right to inherit from the other. Moreover, a spouse is the only person who cannot be disinherited simply by saying so in one's Last Will and Testament. It is important to consult with a lawyer if this right of inheritance will prove a problem: for example, if one has begun living with someone else whom one wants to inherit one's property, or if one has children with someone other than the spouse.

DIVORCE PROCEDURE

To file for divorce in Pennsylvania, one of the spouses must have been a resident for 6 months. One cannot simply fill out an application, but must file a formal proceeding in court. If you and your spouse agree that you want to get divorced, you may be able to go to a lawyer or legal service offering a cheap divorce. However, if you both use the same lawyer, you may not be made aware of rights that you are giving up, and that lawyer cannot represent either of you if you must litigate issues. One is not required to get a lawyer, but it is prudent to at least consult one for advice if there is any economic value in the marriage.

There are two basic economic aspects to a marriage: marital property and alimony. Property may include certain reimbursements for "intangible" rights or opportunities given up so as to help the spouse.   Alimony is normally a monthly payment for a certain time; however, it is possible to take a lump-sum in place of alimony, and to have a property settlement be paid out over a period of years. The question is important in dealing with the IRS on what is income (alimony) or not (property settlement).

Economic rights must be claimed before a divorce is final, or they are lost. This means that if a spouse wants alimony after the divorce, or the spouses cannot agree on who gets what property of the marriage, each will need a separate lawyer. Also, while custody can be modified at any time, as a practical matter the parent who gets primary physical custody will usually keep it. Therefore, the longer the marriage (making post-divorce alimony more likely), or the more property the couple has, or the more different their attitudes about care of children, the more vital it is that each spouse gets separate legal counsel.

In Pennsylvania, there are two kinds of "No-Fault" divorce. If the spouses agree to get divorced, they can request a decree 90 days after the divorce case is filed and served on the other party. Even if one of the spouses does not want to get divorced, the other spouse can file to ask for a divorce decree two years after final separation. Note that the date of final separation may be different from the date that a divorce action is filed. Some divorces will take more than two years, if the parties cannot settle property questions.

Pennsylvania also permits divorce on fault grounds, such as adultery, desertion for one year, bigamy, imprisonment for two years, acts of physical harm, or "indignities," which means a pattern of irritating acts. Using one of these grounds can provide a divorce decree in less than two years, or may influence the amount of alimony awarded. Under the law, marital misconduct does not influence the division of marital property; in practice, the feeling that a judge has about the justice of a case is of primary importance; a lawyer can ensure that the merits of one's case are clearly stated.

After a divorce decree, one may re-assume a prior name, by filing a form with the Prothonotary (court office for filing civil papers).

SUPPORT AND ALIMONY

People who are married to each other but have separated, or who are parents of a child together, have rights to support. In Pennsylvania, as in most states, it is important to file as soon as possible with the county support office, called “Domestic Relations." The date of filing is the date from which the court will require support to be provided, even if the parties separated many years before. If you are paying support, be sure to document your payments, whether by check or receipt.

After the application has been filed, the court sets an appointment before a Hearing Officer, with both parties present, to determine the amount of support. If the other party lives in another state, there will be some delay, as a hearing with that party will be held in that other state. Once a decision is made, a dissatisfied party has 10 days to appeal to the court.  While the Hearing Officers and the court try to be fair, having an attorney present can ensure that one's situation is fully and accurately represented.

How is the amount of support determined? All states now have a set of mathematical formulas that look at how much each party makes, and how many children and other dependents each has, to provide a "Guideline" amount. The court can vary from this amount if there is a good reason, such as major medical or educational expenses, or large joint debts. However, ordinary living expenses do not merit a deviation: a party who complains of a large rent or auto payment will be told to get a smaller apartment or car. In Pennsylvania, the court can also order payment of health insurance, medical expenses, private schooling, child-care expenses, and even mortgage payments of the marital home if appropriate.

Spousal support continues until divorce. Technically, once a separated spouse begins to live with another love interest the "spousal support" obligation ends, but the courts reinstate it once a divorce is filed by either party, when the support is called APL: "alimony pendente lite” (pen-DEN-tey LEE-tey). Once a divorce decree is signed, all obligations to a spouse stop unless the decree provides for alimony after divorce. Getting alimony will usually require the assistance of a lawyer.

The obligation to support a child continues until the child is 18. There may be an obligation for child support even after 18, if the child is attending high school. However, Pennsylvania and most other states will not require a parent to support a child beyond high school, unless that was put into a contract.

Note that support/alimony paid to a spouse or ex-spouse is taxable income to the recipient, and is deducted by the payor. Child support has no tax consequence, except to create the threshold of support ($600) needed for a non-custodial parent to be able to claim the child as a deduction, if the custodial parent has signed the IRS form giving permission for this.

PROPERTY RIGHTS

If divorcing parties cannot agree on who is to take what property, they will have to get lawyers and go to court. A court can divide marital property in anyway it feels is fair, no matter which spouse is the owner of record. Marital property does not include gifts, inheritances, or property owned before the marriage or acquired after separation. However, property that is used by both spouses during the marriage may be considered to have become marital property.

As a practical matter, fighting over tangible personal (movable) property is not worth the time and money. Making a list together, room by room, of what each one wants is the best way to divide such property. Only if one has an item worth over $1000, or of sentimental value beyond the thousands in attorneys' fees that would be spent, might it make sense to litigate.

Normally one has an appraisal done of real estate or very valuable personalty. It is usually far less expensive to negotiate an agreement than to litigate, and an agreement allows one the flexibility to make unique arrangements that cause a party the least inconvenience. The marital house, for example, can be sold and the proceeds divided.  Or one spouse can refinance and give the other their share.  This can happen over time, especially if the children would like to continue living in the house, so their caretaker is allowed to live in the house until the children are adults. In extended arrangements, who pays the mortgage, utilities, minor repairs, major repairs, taxes, etc., and who is allowed to live in the house, should be settled in writing.

Often, the most important asset in the marriage is the pension and 401k or other retirement vehicle of one of the spouses. If the retirement was being accumulated during the marriage, then a portion of that retirement is divisible in divorce. Because Federal law governs most pensions and 401Ks, a special order called a QDRO ("quad-ro") must be drafted if a retirement vehicle is being divided. People can try to split every item of property, or they can offer other property, to avoid having the retirement split. Military retirement benefits have some special rules that require attention: benefits can be converted to disability payments and therefore not payable, and a 10 year marriage is needed to force the Finance Office to send money directly to the other spouse.  It is best to consult an attorney with JAG experience.

Note that a spouse who has a 10-year marriage and has not remarried can elect to get payments under the other spouse's Social Security level. This does NOT affect the other spouse’s benefits, and should not be an issue in a divorce.

CUSTODY OF MINOR CHILDREN

Parents have a right to live with and control their children until age 18 in Pennsylvania. Each parent has this right equally, but if parents do not live together, a choice may have to be made about whom the children will live for most of the time. If the parents live close together, they may be given "shared" custody, with the children spending about half the time with each parent.

If this is not appropriate, the parent who has the child for more than half of the time has "primary physical custody." The other parent has "partial custody and visitation rights.” (Technically, "sole custody" means the other parent has no rights, and "visitation" by itself means only visits in the custodial parent's home.) The 1999 Pennsylvania support Guidelines give a parent who has the child 40% or more of the nights (hours spent during the day, but not extending to an overnight visit, do not count) a reduction in that parent's support payment.

While the standard custody order gives the parent with partial custody every other weekend and one evening in the off- week, plus some vacation weeks and half of the holidays, the amount of time can be whatever suits the situation of the parents and the child. Each parent has the right to time with the child, even if that parent is not providing support.

If one parent refuses to provide the children to the other parent, the only remedy is to file for custody. Normally, one needs a lawyer to file for custody and to set a date for a custody hearing. In Beaver and Butler Counties, this initial hearing takes place before a Hearing Officer. The Hearing Officer will try to get the parents to reach an agreement, but will write a report and recommendation to the court if the parents cannot agree on a schedule of visitation. If one is dissatisfied with the recommendation, one has 20 days to appeal it to the court. In Allegheny County, the parents are automatically scheduled for classes and a mediation session, from which the lawyers are excluded. The next step is a mediation with attorneys present, and then evaluations ($1500 from each litigant) and judicial involvement. Other counties, such as Lawrence, begin with a conference of the judge and the lawyers for each side.

ABUSE

A spouse, relative, or romantic relation can ask for a “stay- away" order, through a Protection from Abuse (PFA) action. The law is meant to stop physical or sexual violence, or threats of physical or sexual violence. It will not deal with acts of mental cruelty/abuse; one needs to separate and file for divorce if one cannot stand the way one's spouse acts.

To get a PFA, go either to the Courthouse or to a District Justice, where an immediate temporary order can be issued. The District Justice order only lasts 3 days, but the one at the Courthouse lasts 10, followed by a hearing on a permanent order (up to 12 months). Depending on the situation, the alleged victim may be given temporary custody of children, and temporary control of a marital dwelling. The person filing for protection will be told how to obtain free legal services; the defendant will have to get his or her own attorney.

If one suspects that a child has been abused physically or sexually, one should immediately call the county Children & Youth Services, which will investigate the matter. In cases of physical injury, photographs should be taken immediately to document the child's condition. A parent accused of child abuse should get a lawyer quickly, as the charge has serious and long-lasting consequences. Simply being accused of abuse immediately limits one's contact with the child, and the passage of time can blur distinctions between fact and fantasy in the child's mind. If the abuse is deemed to have taken place, the abuser is ineligible for many jobs that require contact with children.

TERMINATION OF PARENTAL RIGHTS

If a child has been seriously abused, or if a parent has shown no interest in the child for six months, one may file to terminate that parent's rights to see the child. Such cases, however, are not "open and shut." Parents can also agree to a termination of rights, but most courts will want a replacement parent to adopt the child before signing such an order.

GRANDPARENTS' RIGHTS

Pennsylvania law provides for rights for grandparents and great-grandparents in certain situations, usually if the child lived in the grandparent's house for at least a year. Because these rights are limited and are subordinate to the parent-child relationship, an experienced family lawyer’s advice is vital to asserting such rights successfully.