One minute you’re strolling hand in hand with your spouse through Love Park and the next you’re arguing more than lawyers do in court. Your marriage has reached a breaking point and you’re considering a divorce. What are your rights? Where you do start?
This article contains basic information about filing for divorce in Philadelphia.
What Is a Divorce?
Divorce is the formal and legal end of a marriage by a court. To get a divorce in Philadelphia you must be in a valid marriage. Pennsylvania does not recognize same-sex marriages or common law marriages created after January 1, 2005.
Is It the Same as a Legal Separation?
A legal separation is different than divorce. Unlike other states, Pennsylvania does not have “legal separations.” The only way to legally end your marriage is through divorce. As discussed below, simply living apart from your spouse is often only one of the questions and steps involved in getting a divorce in Philly. Here are a few others:
Residency: Where Do You Live?
To file for divorce in Philadelphia you must meet three requirements:
- You and/or your spouse have lived in Pennsylvania for at least six months immediately leading up to the filing;
- One or both of you currently live in Philadelphia or you both agree to divorce in Philadelphia; and
- There is not already a divorce case filed in another county or another state (unless that case has been withdrawn).
Grounds for Divorce: Who is at “Fault?”
There are three types of divorce in Philadelphia: “mutual consent,” “fault based,” and “no fault.” If both you and your spouse want to divorce, the fastest process is a mutual consent divorce. Alternately, many people choose to file for no- fault divorce because it can be less expensive and less complicated than fault-based divorce.
Mutual Consent Divorce: Once the initial paperwork is filed, there is a 90-day waiting period. After that time, both spouses will make sworn statements that the marriage cannot be fixed and the judge can grant the divorce.
Fault-Based Divorce: If a spouse can prove they are “innocent” of wrongdoing, a judge may grant a fault-based divorce if a spouse committed one of the following actions:
- Abandoned the other without reasonable cause and has been out of the house for one year or longer;
- Cheated on their spouse;
- Put their spouse’s life and health at risk (example: domestic violence);
- Married their spouse, but was still married to another person;
- Was sentenced to imprisonment for two or more years for committing a crime; or
- Behaved in a way that made their spouse life unbearable or extremely difficult (example: repeated humiliation or verbal abuse).
Fault-based divorces are very complex and one may want to consider consulting an experienced divorce attorney or contact a Philadelphia Legal Aid group before filing.
No-Fault Divorce: A judge may grant a no-fault divorce under the following conditions:
- A spouse has been confined to a mental institution for at least 18 months prior to you filing for divorce;
- Both spouses agree to the divorce; or
- The spouses have lived apart for at least 2 years and one files a legal document claiming the marriage can’t be fixed.
Filing Court Papers and Sending Copies to a Spouse
In Philadelphia, you must file paperwork, known as a divorce complaint, with the Clerk of the Family Court located at 1133 Chestnut Street. The complaint must be filed in person and as of April 2014, the cost to file is $316.98. After filing the paperwork, a copy must be sent to the other spouse. It is very important to carefully follow the rules for filing a complaint and sending a copy to the other spouse. An experienced attorney may be able to help with questions and advice specific to a case.
A Spouse’s Opportunity to Respond
A spouse receiving a divorce complaint has the opportunity to respond. A judge can still move forward with the divorce even if they fail to respond or refuse to agree to the divorce. In that circumstance, however, the spouses must first live separately for at least two years.
If a spouse responds to a complaint and agrees to the divorce then the process can proceed as a mutual consent divorce.
On the other hand, if they refuse to agree, court appearances and a hearing will be required. At the hearing, the judge will look for two things:
- Whether the spouses have lived apart for 2 years; and
- Whether the marriage is “irretrievably broken.”
The judge may find that there is a reasonable possibility the spouses will get back together. If that happens, the court will order them to attend marriage counseling and schedule another court date. The judge must grant a divorce after the second hearing if he or she decides there is no chance of reconciliation.
Issues Related to Property and Children
In many cases, a divorce is not as simple as two people legally breaking up. There are often other factors to consider: Where will you live? Who will be responsible for the children? What will happen to your life savings ? These issues usually must be decided as part of a divorce, either by agreement between the spouses or by a judge.
- Division of marital property: Marital property includes nearly all property obtained by either spouse from the date of marriage through the date of final separation. This includes houses, cars, bank accounts, pensions, and debt. One must request that the court divide marital property as part of the divorce proceedings. If spouses are able to reach an agreement, the court will generally accept it. If not, the court will divide the property in a way it deems “fair.” This means the court can give more property to one spouse.
- Alimony: Alimony is financial support provided by one spouse to the other after a divorce is granted. Either spouse may file for alimony, but the request must occur before the divorce is finalized. The court can also grant temporary financial support during the divorce proceedings. When deciding whether to award spousal support, the court considers several factors.
- Child Custody and Child Support: Unlike alimony and the division of marital property, child custody and child support do not have to be decided as part of a divorce. These issues can be addressed in a separate court action at a later date.
Divorce cases can be very complicated, stressful, and intimidating. An experienced local family law attorney may be a helpful guide through the process.