Legal Separation in Pennsylvania

Pennsylvania law does not formally provide for legal separation. Separation for two years is, however, a requirement in Pennsylvania for a no-fault divorce if both spouses do not consent to the divorce. Thus, it is helpful to know what constitutes “separation” for the purposes of a no-fault divorce. In this context, “separation” generally means that the parties have simply been living separate and apart. It is, however, possible for spouses to be living “separate and apart” and still be living in the same residence.

Initial considerations for Divorce in Pennsylvania

In order to file for divorce in Pennsylvania, the filing spouse must be a resident of Pennsylvania for at least 6 months prior to filing (PA Statute 3104).

A divorce in Pennsylvania may be filed in the county where:

• • The defendant (non-filing spouse) resides;
• • The plaintiff (filing spouse) resides, if the defendant resides outside of Pennsylvania;
• • The plaintiff (filing spouse) resides, if the divorce was filed prior to six months after the date of final separation and if the defendant (non-filing spouse) agrees to this;
• • Either spouse resides, if neither party continues to resides in the county of the marriage home, if the divorce was filed prior to six months after the date of final separation; and
• • Where either spouse resides, if the divorce was filed later than six months after the date of final separation.

Grounds for Divorce

“Grounds for divorce” are the legal reasons for a divorce. Pennsylvania recognizes both no fault and fault grounds for divorce.

There are two options under Pennsylvania law to file for no fault grounds. The first option is “mutual consent.” It requires that both parties file affidavits agreeing to divorce. The second option is that the court can grant divorce if the marriage is irretrievably broken, which requires both parties to be separated for two years.

Under Pennsylvania law, you can file for divorce on the following fault grounds:

• • Adultery
• • Desertion for more than one year.
• • Cruel and inhumane treatment in which the health and life of the spouse is at risk
• • Imprisonment for 2 or more years
• • Confinement in a mental institution for a foreseeable long time
• • Bigamy (Title 23, Sections 3301)

Division of Property

Pennsylvania is referred to as an “equitable distribution state” (as opposed to being a “community property state” as are some other states). This means that a certain type of property, “marital property,” will be distributed “equitably” among the spouses in a divorce. Other property, called separate property, is not divided between the spouses at the time of a divorce and is generally kept by the spouse who originally owned it. Take note that the word “equitable” does not necessarily mean equal or 50/50. It means that marital property will be divided in a fair or just way under the circumstances.

What “marital property”?

The term “marital property” is defined in Pennsylvania Consolidated Statutes, Title 23, Chapter 35, Section 3501. It can be quite complex to determine whether some assets (or appreciation in value of assets) should be considered “marital property.” Thus, it is important to consult an attorney for this purpose.

In general, “marital property” means all property acquired by either party during the marriage and the increase in value of any nonmarital property (a) acquired prior to marriage, (b) in exchange for property acquired prior to marriage, (c) acquired by gift, except between the spouses, (d) acquired by bequest, devise, or decent, or (e) acquired in exchange for property acquired by bequest, devise, or decent.

Nonmarital property generally does not include:

• 1. Property acquired prior to marriage or property acquired in exchange for property acquired prior to the marriage.
• 2. Property excluded by valid agreement of the parties entered into before, during or after the marriage.
• 3. Property acquired by gift, except between spouses, bequest, devise or descent or property acquired in exchange for such property.
• 4. Property acquired after final separation until the date of divorce, except for property acquired in exchange for marital assets.
• 5. Property which a party has sold, granted, conveyed or otherwise disposed of in good faith and for value prior to the date of final separation.
• 6. Certain veterans’ benefits (if this applies to you, see the statute or consult an attorney to determine how specific benefits would be treated).
• 7. Property to the extent to which the property has been mortgaged or otherwise encumbered in good faith for value prior to the date of final separation.
• 8. Any payment received as a result of an award or settlement for any cause of action or claim which accrued prior to the marriage or after the date of final separation regardless of when the payment was received.

Marital property in Pennsylvania is distributed equitably based on marital assets and liabilities between the parties. Courts consider at least 11 factors when considering equitably dividing property. These include:

• Length of marriage
• Prior marriage
• Age, health, station, income, vocational skills, employability, liability, and needs of each party
• Contribution by one party to the education, training, or increased earning potential of the other party
• Opportunity of the parents to acquire future income and assets
• Sources of income
• The services of each party as a parent, wage earner, or homemaker.
• The value of the property set apart to each party
• The standard of living established during the marriage
• The economic considerations of each party
• Whether the party will be serving as the custodian of any dependent, minor children (See Title 23, Section 3502).

Alimony in Pennsylvania

The laws of Pennsylvania governing alimony and spousal support are generally contained in the Pennsylvania Consolidated Statutes at Chapter 37 of Title 23, and may be found here (click on the link, then click on “Title 23,” “Part IV. Divorce,” and “Chapter 37”).

Factors Affecting the Amount and Duration of Alimony

A court may consider a variety of factors when determining whether to grant alimony and in determining the nature, amount, duration, and manner of payment of alimony. These factors include:

• (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) Tax ramifications of the alimony award.
• (16) Whether the party seeking alimony lacks sufficient property, including, but not limited to, property distributed in the divorce, to provide for the party's reasonable needs.
• (17) Whether the party seeking alimony is incapable of self-support through appropriate employment.

This explanation is intended only as a basic overview. The statute (23 Pa.C.S.A. § 3701) includes more detail. Case law may also be relevant. It is always best to read the actual statutes carefully and to consult an attorney to determine the law in your particular situation.

Modifying Orders for Spousal Support

A court may increase or decrease the amount of money paid as alimony if either spouse requests it from a court “upon changed circumstances of either party of a substantial and continuing nature” (see the Pennsylvania Consolidated Statutes at Title 23, Chapter 37, Section 3701).

That is, if either spouse can show changed circumstances that are substantial and continuing, then a court may modify or terminate alimony.

When do Alimony Payments End?

Alimony may only last for period of time specified in a court order. Or it may last for an indefinite period of time (as long as that indefinite period of time is “reasonable under the circumstances.”)

In general, alimony that has been granted for an indefinite period of time terminates when either party dies or when the recipient spouse remarries. In some cases, alimony can end if the recipient spouse continuously cohabitates with another person and that other person provides some degree of support to the recipient spouses.

Tax Consequences of Alimony

It is important to understand that there may be tax implications for individuals who pay or receive alimony. According to Section 71 of the Internal Revenue Code, alimony must be included in the recipient’s gross income and can be excluded from the payer’s gross income.

However, it is critical that payments actually qualify as alimony under the law. To qualify as alimony (also according to Section 71 of the Internal Revenue Code), payments must generally meet five conditions:

• (1) The payment is be a cash payment (such as a check or money order)
• (2) The payment is received by (or on behalf of) a spouse under a “divorce or separation instrument”
• (3) The divorce or separation instrument does not designate the payment as a payment which is not includible in gross cross income as alimony and not allowable as a deduction for the payee spouse (under Section 215 of the Internal Revenue Code).
• (4) The payer and payee are not members of the same household at the time payments are made
• (5) There is no liability to make payments after the death of the recipient spouse

Sometimes it is difficult to determine whether a payment qualifies under the law as alimony. There also may be state and local tax implications for individuals who pay or receive alimony. Therefore, it is best to consult with an attorney or qualified tax professional.

Child Support in Pennsylvania

Child support is a court-ordered payment by one parent to the custodial parent of a minor child, generally after divorce or separation. Calculation of child support is explained in Chapter 1910 of the Pennsylvania Code (a link here). Pennsylvania law generally requires that child support be awarded according to official state guidelines. Child support guidelines are considered based on the reasonable needs of the child seeking support. 

In determining the reasonable needs of the child, the guidelines place primary emphasis on the net incomes and earning capacities of the parties, with allowable deviations for unusual needs, extraordinary expenses and other factors, such as the parties’ assets, as warrant special attention.

Net income is defined at Rule 1910.16-2 of the Pennsylvania Code (a link here).

The basic child-support guidelines are available at this link. This will help you come up with the basic total amount for which both parents together are obligated to spend for the support of their children. Keep in mind that other factors are often taken into account. Also keep in mind that a specific parent’s share of this basic support amount is computed using the formula available at this link.

Child Custody in Pennsylvania

Child custody in based on what courts determine to be in “the best interest of the child.” In considering the best interest of the child, courts can order sole or shared custody. There are several factors that courts may consider including (but not limited to):

• • The child’s preference
• • Any factor that legitimately impacts the child’s physical, intellectual and emotional well-being.
• • Which parent is likely to foster frequent and continuing contact between the child and the non-custodial parent
• • Each parent and adult household member's present and past violent or abusive conduct which may include, but is not limited to, abusive conduct

Child Visitation in Pennsylvania

Visitation generally refers to the ability of a noncustodial parent (that is, a parent who does not have primarily custody) to be able to spend time with his or her child. In Pennsylvania, the term “visitation” is not frequently used because it has a slightly different meaning than it does in other states. In Pennsylvania, the word “visitation” specifically refers to the ability to spend time with the child, but not necessarily the right to take the child out of the control of the parent with custody of the child; where a parent has both the right to spend time with a child and take the child out of the control of the parent with primary custody, it is referred to as “partial custody.” The legal considerations for “partial custody” in Pennsylvania are generally the same as those for other types of custody.

Pennsylvania law presumes that a child’s best interests are generally served by having strong relationships with both parents. Thus, under Pennsylvania law, it is highly uncommon for a noncustodial parent to be denied reasonable visitation.

Grandparent Visitation

Additionally, under Pennsylvania law, grandparents can seek visitation and partial physical custody rights. A grandparent filing for this must prove that this is in the best interest of the child and does not interfere with the relationship between the child and parent. If a parent does not wish for a grandparent to have visitation rights, then a court must generally at least give special weight to the parent’s wishes and presume that the parent is acting in the best interests of the child. The issue of grandparent visitation is somewhat complicated, particularly because of a recent United States Supreme Court decision, Troxel v. Granville, which concerned grandparents’ custody and visitation rights. It is always best to consult a qualified family law attorney in cases involving custody and visitation rights.