Pennsylvania Divorce FAQ’s

Q: Will I be required to pay alimony in Pennsylvania?

A: This will depend on the present circumstances of you and your spouse.  Alimony is provided for under Pennsylvania Law; however, an Award of Alimony depends on certain factors like the length of the marriage; the respective incomes of each party and the respective assets of each party.  There is a difference between alimony pendente lite and alimony.  Alimony Pendente Lite is only paid during the course of a divorce proceeding and only to sustain that spouse through the divorce proceeding.  Post-divorce alimony will depend on the circumstances listed above and many others.  Each case must be assessed on an individual basis.

Q: Is there a set formula for child support in Pennsylvania?

A: There is a set formula in every state for child support.  The child support guidelines in Pennsylvania as in all states are based upon the net income of the parties.  There are charts available on the Internet to determine child support if you are aware of the income of both yourself and your spouse.  Generally speaking, the more money that the spouses make collectively, the less percentage of their income will be paid for child support.  It is necessary to consult the child support guidelines in order to answer this question specifically which would of course depend on your own financial circumstances.

Q: Is there a preference for women or men regarding child custody in Pennsylvania?

A: Child custody is neutral and there can be no expressed preference for gender.  Often, a stay-at-home mother will obtain primary physical custody just by virtue of the circumstances.  However, both parties have the absolute right to spend quality custody time with their children and the sole criteria for determining who gets custody is what is in the child or children’s best interest.

Q: I have custody of my children.  Can I move from the Commonwealth of Pennsylvania with my children without the permission of my husband/wife?

A: In Pennsylvania, as in most states, a primary custodial parent that, is one who has the children most of the time, cannot move from the state without permission of the other spouse or the Court.  If you move from the state of Pennsylvania (even to New Jersey) without the permission of your spouse or Court approval, you will be required to return to Pennsylvania by a judge.  There are criteria to be applied when somebody applies to a Court to move out-of-state.  Among the criteria are the reasons that the spouse is moving and whether or not the relationship between the other spouse and the children can be maintained if the spouse is allowed to move.  Obviously, a move to New Jersey would usually be granted because of its proximity to Pennsylvania.  However, a move to a distant state will be analyzed under the above factors and if you and your spouse have shared custody, the burden of proof for moving is much higher.

Q: My husband and I have been married for a long time and my husband has a pension through his employment.  Am I entitled to receive a portion of the pension and if so, how much?

A: There are two kinds of pensions, each with its own set of rules.  There is a defined benefit plan and a contributory plan. 

A defined benefit plan is what we traditionally call a pension whereby a retiree gets a monthly payment based upon his average yearly salary and length of service with the company. 

A contributory plan is like a 401K or 403B or other plan whereby the employee contributes a certain amount each month to an account and the employer sometimes matches that money. 

Both the "defined benefit" and "contributory"  plans are considered marital assets and are subject to be divided between divorcing spouses.

The manner in which each of these pensions is divided between divorcing spouses is subject to complicated calculations set forth by the Court.  Consulting a lawyer is important in insuring that pensions division is properly carried out.

Q: My husband and I are presently estranged.  We have a divorce pending, but for economic reasons, we are living in the same house.  Can I have my husband removed from the house?

A: Under Pennsylvania law, the only way to forcibly remove a spouse is if the spouse commits a violation under the Protection from Abuse Act.  That means that the spouse must legally harass or threaten or actually assault the spouse who claims abuse.  Other than that, it is very difficult to remove a spouse during the course of the divorce because that will be perceived as giving one spouse advantage over the other.

However, under the Divorce Code, there is also a provision that allows the Court to award possession of the marital home to one spouse or other pending a divorce.  This is usually in extreme circumstances where, for example, husband moves out of the house for six months and then decides he is angry at what is happening and moves back in, thus depriving the other spouse of her expectation of privacy.  Primarily, however, if there is no physical abuse or threat of physical abuse or harassment, there is no way to remove a spouse during the course of a divorce.

Q: I am presently divorcing my husband and do not have money to pay legal counsel fees.  Can my husband be made to pay my legal fees?

A: There is a provision in the Pennsylvania Divorce Code for counsel fees for services provided during the course of a divorce, however, counsel fees are rarely awarded.  There are  limited circumstances where the principal earner would be required by the court to  pay a dependant spouse’s counsel fees. For example, this might arise in the case of a long term marriage where the wife is a stay-at-home mother with no personal source of income, no separate assets AND extremely limited abilities to earn an income.

Q: What are grounds for divorce in Pennsylvania?

A: The primary grounds for divorce are what is called “irretrievable breakdown”.  This requires either a two year separation OR both parties filing an Affidavit 90 days or more after service of the divorce complaint on the defendant.  The overwhelming majority of all litigants use no-fault grounds since fault grounds really provide no advantage.  However, under the old divorce law prior to 1980, and still, there is an allowance for divorce on the basis of indignities to the person.  In this case, the person seeking divorce must prove that he or she is the innocent and injured spouse and that there were indignities committed against that spouse.  Very, very rarely now do we litigate fault grounds in a divorce since it can serve no advantage financially.  Adultery continues to be a basis for divorce as well although this is also rarely used.

Q: I am receiving alimony and have lost my job.  Can I make a case for an increase in alimony?

A: This depends on the original circumstances of your receipt of the alimony.  If there is a property settlement agreement that says that the alimony is modifiable, then you can ask for a modification.  If it is called non-modifiable, then you cannot ask for more alimony.  If it does not say one way or the other, then it is presumed to be non-modifiable.  However, if the Alimony is a result of a contested court proceeding and was a determination by the Court, it is always modifiable.

Although the above information provided in this brief Q & A will give you an idea of how the Court treats these areas of the law, a call to Kamensky Cohen & Riechelson for an assessment of your particular situation is your best option to get a complete and accurate understanding of any divorce proceedings you are contemplating or presently going through.  Our attorneys have been practicing in the State of Pennsylvania for over 30 years and will guide you through the labyrinth of law and insure an optimum outcome for you.