Pennsylvania Divorce FAQ

Divorce – State FAQ – Pennsylvania

Residency requirements, venue and procedures

Q: How long must I have lived in Pennsylvania prior to filing for divorce in a Pennsylvania court?

A: At least one of the parties the the action for divorce must have resided in the Commonwealth of Pennsylvania for at least six months immediately prior the the commencement of the action for divorce.

Q: What are the terms used to identify the parties in a divorce proceeding?

A: The party filing the action is called the Petitioner, while the other party to the divorce is referred to as the Respondent.

Q: What is “venue,” and what is the proper venue for a divorce case?

A: “Venue” refers to which type of court and in what locality the case is filed. In Pennsylvania, proper venue for the divorce action is the Court of Common Pleas. The action for divorce may be properly brought in the county in which the plaintiff or defendant resides, or in any county which the parties have agreed to writing or participated in the proceedings.

Q: What is the title of the document initiating the action for divorce? The order granting the divorce?

A: The title of the document initiating the divorce proceeding is a Petition for Divorce, while the title of the order granting the divorce is referred to as the Decree of Divorce.

Grounds for Divorce

Q: What is meant by “grounds for divorce”?

A: A “ground” for divorce is a “reason” for divorce. A set of judicially recognized reasons for divorce exist in Pennsylvania. You must use one or more of these reasons to justify your divorce.

Q: What are the recognized grounds for divorce in Pennsylvania?

A: The Commonwealth of Pennsylvania permits divorces to be granted upon the following grounds:

1. Willful and malicious desertion for a period of one or more years;
2. Adultery;
3. Cruel and barbarous treatment which endangered the life or health of the innocent spouse;
4. Bigamy;
5. Imprisonment for two or more years;
6. Indignities to the innocent spouse as to render that spouse’s condition intolerable and life burdensome;
7. Institutionalization in mental institution for at least 18 months; and,
8. Irretrievable breakdown.

Q: Does Pennsylvania law provide for a simplified divorce procedure?

A: Yes, in a manner of speaking. A divorce based upon irretrievable breakdown may be awarded two separate ways. First, if the parties allege that the marriage has suffered an irretrievable breakdown and both parties file an affidavit consenting to the divorce, the court may award a divorce after a period of 90 days have elapsed from the date of commencement of the proceeding. Second, if the one of the parties allege that the marriage has suffered an irretrievable breakdown and the filing party files an affidavit stating that the spouses have lived separate and apart for at least 2 years and the defendant either does not deny the allegations set forth in the affidavit or denies one or more of the allegations but the court determines the allegations to be true, the court may enter a decree of divorce.

Property Division

Q: On what basis does the court decide how marital property is divided?

A: Pennsylvania is a so-called “equitable distribution” state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. The trial court’s discretion will not be disturbed on appeal without a showing of clear abuse, and the court has wide discretion in making an equitable distribution.

Q: Is the “separate property” of one spouse subject to being divided up?

A: The question here is whether property “belonging to” one of the parties should be included in the marital estate for purposes of an equitable division. Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage.

Q: What if the parties occasionally use an item of separate property (for example, silver table utensils inherited by the wife) for the benefit of both parties?

A: The property may be subject to division. Where the parties regularly use property acquired by one party before marriage for the common benefit of the parties, it is more likely to be available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.

Alimony/spousal maintenance

Q: What does the term “spousal maintenance” (or, “alimony”) mean?

A: “Spousal maintenance” (sometimes called “alimony”) is money paid by one spouse to the other due to the payee spouse’s loss of the benefit of the payor spouse’s income due to the divorce. The Divorce Code provides that the court may allow alimony to either party “only if it finds that alimony is necessary.”

Q: Is spousal maintenance available while the divorce is pending in court, or only after the divorce has become final?

A: The court may order that one spouse pay maintenance to the other during the pendancy of the divorce action and/or after the divorce has become final. Maintenance awarded pending the final decree of divorce is not to extend beyond the period of time necessary for the prosecution of the divorce action.

Q: What are the types and duration of maintenance payments?

A: Alimony in Pennsylvania is authorized in limited situations and is not the broad remedy that it is in other states. Alimony in Pennsylvania is either “rehabilitative” or “permanent”.

Rehabilitative alimony is intended to be a short-term measure which enables a spouse to get back on his or her feet. Alimony is awarded to enable the other spouse to go back to school or to acquire needed skills that would enable the spouse to be competitive in the job market. Usually a spouse who has chosen the role of becoming a homemaker and raising children has not been able to develop the skills necessary for productive and gainful employment.

Permanent alimony continues for a long period of time, possibly until the death of the party receiving the alimony, and is usually awarded when one of the parties is unable to work due to age, or physical and/or mental illness.

Q: What factors will the court consider when determining how much alimony to award to a party?

A: If the court determines that a spouse is eligible for alimony, the following factors are then considered in the award:

1. the financial resources of the spouse seeking alimony,including both separate and community property and liabilities;
2. the spouse’s ability to meet his or her needs independently;
3. the education and employment skills of the spouses;
4. the time necessary for the supported spouse to acquire sufficient training or education to enable him or her to find employment;
5. the availability and feasibility of that training;
6. the duration of the marriage;
7. the age, employment history, earning ability, and physical and emotional condition of the spouse seeking alimony;
8. the ability of the supporting spouse to meet their own needs and make any child support payments;
9. excessive or abnormal expenditures, concealment or destruction of any property by either spouse;
10. the comparative financial resources of the spouses,including medical, retirement, insurance or other benefits,and any separate property;
11. the contribution of one spouse to the education, training,or increased earning power of the other spouse;
12. the contribution of either spouse as homemaker;
13. any marital misconduct of the spouse seeking alimony;
14. whether the party seeking alimony lacks sufficient property to provide for his or her needs;
15. the efforts of the spouse seeking alimony to obtain self-support skills while the divorce is pending or during any separation;
16. property brought to the marriage by either spouse; and
17. any tax ramifications.

Child custody and visitation

Q: What is child custody and visitation?

A: “Child custody” refers to which parent will have legal custody of the child(ren), i.e. with whom the child(ren) will live. “Visitation” is the topic of the non custodial parent’s ability to visit/spend time with the child(ren).

Q: If the parents cannot agree on child custody and visitation issues, on what basis will the court decide?

A: The court shall determine the custody of any minor children of the marriage based upon the best interests of the child. In determining the child’s best interests, the court shall consider the following factors:

1. The child’s age, gender, mental and physical health;
2. The mental and physical health of the parents;
3. The lifestyle and other social factors of the parents, including whether the child is exposed to second-hand smoke and whether there is any history of child abuse;
4. The love and emotional ties between the parent and the child, as well as the parent’s ability to give the child guidance;
5. The parent’s ability to provide the child with food, shelter, thing and medical care;
6. The child’s established living pattern (school, home, community, religious institution);
7. The quality of the schools attended by the children;
8. The child’s preference, if the child is above a certain age (usually about 12); and
9. The ability and willingness of the parent to foster healthy communication and contact between the child and the other parent.

Q: Can grandparents be granted visitation rights?

A: Yes. grandparents can be granted visitation rights if it within the best interest of the child to do so.

Child support

Q: What is “child support”?

A: Child support is money paid by the non custodial parent to the custodial parent in order to meet the needs of the child(ren).

Q: To what should the parties look for guidance regarding amount of child support to be paid? What standard will the court use if the parties cannot agree?

A: The court shall order either or both parents owing a duty of support to any child of the marriage dependent upon either or both spouses to pay an amount determined under the child support guidelines established by Pennsylvania law. A discussion of the Pennsylvania child support guidelines can be found here:

Pennsylvania Department of Public Welfare.

Inside Pennsylvania Divorce FAQ