When asking the court to grant a divorce, either spouse may also ask the court to divide the couple's marital property. Pennsylvania is an "equitable distribution" state which means Pennsylvania courts will divide property equitably (fairly) between spouses in a divorce. This is not the same as a community property state, where property is generally divided equally between the spouses or 50/50. Equitable distribution does not always result in an even split. The court will arrive at an equitable division of property by considering several factors, including:
After looking at the above factors, the court may divide all the marital property equally, or the court may look at each asset and divide some equally and some by another percentage. Until the case is final, the court may also give either or both spouses the temporary right to live in the marital home and may also make temporary awards of property.
Courts in Pennsylvania do not consider marital misconduct, such as adultery or cruelty when dividing property. However, these factors may be considered in other parts of the divorce process.
After the final order is made, the court has the power to make the spouses follow the order through a variety of further orders and the possibility of fines or penalties.
Alimony is a court-ordered payment made by one spouse to the other. Court-ordered payments which are to be made before the divorce is over are called “spousal support” or “alimony pendente lite.” Alimony is the word used for payments made at the time of divorce and after.
Spouses may agree to the amount of alimony and how long it will be paid. If they come to an agreement, they can include the terms of that agreement in a written contract, sometimes called a “marital settlement agreement” or “divorce agreement.” If the couple can’t agree however, the court can take the matter under consideration and may order both the amount and duration of the payments.
The amount of alimony is decided on a case-by-case basis. The law requires the court to consider many factors. A few of the factors are:
After considering these factors, the court will set the support amount and duration.
For more information on alimony in Pennsylvania, see Understanding and Calculating Alimony in Pennsylvania, by Melissa Tapply.
A child custody order is a judge’s order telling the parents where a child will live and how decisions will be made for the child. Parents aren't required to go to court to work out a child custody plan if they can agree on the terms of custody and decision-making. However, if the parents can’t agree on a parenting plan, they may ask the court to enter a custody order.
Grandparents may also file for custody in some situations. Similarly, someone who is not a parent or grandparent, but has acted as a parent (“in loco parentis”) for a period of time may also file.
A child custody order will provide for physical and legal custody. Physical custody is the “actual physical possession” of the child. Physical custody can be:
The child custody laws in Pennsylvania define the term “visitation” as partial physical custody, shared physical custody or supervised physical custody.
Legal custody may also be divided in different ways, including “shared legal custody” and “sole legal custody.”
The court will look at many factors when making custody decisions, including risk of harm to the child, need for stability in the child’s life, and which party can best meet the child’s needs.
For a complete list of the factors the court will consider, see 23 Pa.C.S.A. § 5328 - Factors to consider when awarding custody.
The final decision about custody will be made according to what is in the the child’s best interests, after considering all the factors, especially those which affect the child’s safety.
Child support is a court-ordered payment from a “non-custodial parent” (the parent who the child does not live with) to the “custodial parent” (parent who the child lives with). The payments are to support and provide for the needs of the child, including medical needs and child care.
To receive child support payments, a “complaint” (legal paperwork) asking for child support must be filed with the court. A non-custodial parent is not required to pay child support until the court makes an order. A case may be brought to court by a parent through an attorney or through a local Pennsylvania Department of Public Welfare office.
The court applies Pennsylvania Child Support Guidelines to determine the amount of the payments. In making the calculation, the needs of the child and the income and expenses of both parents are considered. Child support is payable until the child graduates from high school or reaches eighteen years old, whichever is later.
After the order is issued, either parent may file a request to modify (increase or decrease) the child support amount if the parent believes there has been a change in circumstances that justifies a change in support.
For more specific information on child paternity and how to calculate child support payments in Pennsylvania, see Child Support and Paternity in Pennsylvania, by Susan Bishop.
If you are able to resolve your divorce issues without going before a judge (through mediation or other out-of-court method) then you may not need an attorney. However, if you and the other party are unable to reach an agreement and need the judge to make the decision, then having an attorney represent you will be very helpful. An experienced attorney can assess your case, advise you of your rights and responsibilities, and help you obtain the best possible outcome in court.
See 23 Pa.C.S.A. § 3502 regarding the equitable division of marital property.
For more information on filing for child support through the Department of Public Welfare, see Pennsylvania Department of Public Welfare Child Support Handbook.
To search for free or reduced fee legal help, see Pennsylvania Legal Aid Network - Legal Help Finder or Pennsylvania Bar Association Lawyer Referral Service.