Divorce is the legal process to terminate a marriage. During the process, spouses can negotiate and resolve all divorce-related issues, such as property division, alimony, child custody, and child support. If the couple can't agree on all of their issues, then a court will have to decide for them.
Can We Obtain a Divorce Without Court Intervention?
Yes and no. Couples wishing to divorce can work together by negotiating outside of court to create a divorce settlement agreement that works for their family. For a divorce settlement to be enforceable, a judge must approve it and incorporate it into a final divorce judgment or decree.
Many couples utilize mediation, which is where a trained, neutral third-party helps the spouses agree on how they will handle the most complicated parts of the divorce. If mediation doesn’t sound appealing, you can also consult a therapist or clergy member to help facilitate the discussion.
How and Where do I File for Divorce?
Every divorce requires some interaction with the court. To start, the filing spouse must prepare a complaint for divorce and civil cover sheet, which contains relevant information like the spouses’ names and addresses.
To file in Pennsylvania, at least one spouse must have lived in the state for a minimum of six months before filing. When you complete your complaint, you’ll need to submit it to the court in the county where you or your spouse resides, pay the filing fee, and within 30 days, serve (deliver) a copy of the divorce petition to your spouse.
Pennsylvania Offers Several Divorce Options
Pennsylvania recognizes two types of divorce, no-fault and fault. No-fault divorces are typically less emotional and less expensive than a fault divorce because you are alleging that your marriage is over, but it’s neither spouse’s fault. There are two ways to request a no-fault divorce in Pennsylvania:
- mutual consent, or
- irretrievable breakdown without mutual consent.
For mutual consent divorces, you must tell the court that your marriage has suffered an irretrievable breakdown, meaning you and your spouse no longer want to be married and there’s no possibility you will reconcile in the future. Your spouse will need to agree in writing that the marriage is over. There is a mandatory 90-day waiting period after you file, which means the court can’t take any action on your case until that time passes.
If your spouse refuses to consent to the divorce, you can still ask the court for help, but only if you can demonstrate that you and your spouse have lived separate and apart for at least one year. The process is the same as a mutual divorce, in that you allege that your marriage is irretrievably broken, but instead of waiting three months, depending on the length of your separation, you may have to wait up to a year before you are divorced.
Not all couples can meet the requirements for no-fault divorce, and if that’s the case, you can pursue a fault divorce. A fault divorce is historically more intense than no-fault because it requires one spouse to blame the other for the failures in the relationship. In addition to the complications caused by the mud-slinging, the alleging spouse must also convince the court that the other spouse engaged in the misconduct, which can be challenging.
A fault divorce is only available to spouses who can prove any of the following:
- willful and malicious desertion, and absence from the home for at least one year
- cruel treatment
- imprisonment for at least two years, or
- one spouse shaming or humiliating the other to a point where remaining married is impossible.
In Pennsylvania, you can also request a divorce if your spouse is insane and confined to a mental institution for at least 18 months before filing.
Getting Help While You Wait
While you’re waiting for the court to act on your divorce, you can request temporary orders to help make the wait more tolerable. Some parties find it helpful if the court can provide instruction on who should be the primary caretaker of the children through the divorce process, where the child will reside, and whether either spouse should provide child support and/or alimony. Another common pretrial request is to freeze the marital assets or to require both spouses to continue paying household bills the way they did before the divorce and through the final judgment.
Negotiating a Settlement
During the waiting period, you and your spouse can work together to create a divorce settlement agreement that works for both of you. A settlement agreement should include details on how you and your spouse will divide property and debt, a parenting plan, and whether either spouse will pay spousal support.
It’s helpful to understand that most divorces settle before court, but that doesn’t mean that both spouses shouldn’t be prepared to make some sacrifices during negotiations.
Property Division Basics
Aside from custody, property division is another topic that often causes negotiations to fail. To prevent this from happening in your case, you should know that in Pennsylvania, courts follow an equitable division standard, meaning a judge will split your assets and debts equitably, or in a way that is fair, but not necessarily equally.
Any property that a spouse owned before the marriage—or received as a gift during the marriage—is generally characterized as that spouse's separate property, which is immune from division during a divorce.
Distinguishing between marital and separate property can be complicated, and if you’re unsure how to categorize your assets, it might be a good idea to speak with an attorney.
Child Custody and the Parenting Plan
Parents who settle their divorce without the court’s help will need to include a parenting plan that provides details on child custody, visitation, and child support. The plan should include:
- schedules for each parent and child during holidays and school vacations
- education and religious goals for the child
- detailed regular parenting time schedules
- childcare arrangements
- transportation for visitation, and
- a plan for how the couple will handle future disputes.
Pennsylvania requires a specific format for parenting plans. If you have questions, consider speaking to a local family law attorney.