The divorce track begins with filing of a divorce complaint. The issues addressed are
- the divorce itself, that is, will the divorce decree be a “no-fault” decree and what type of “no fault” decree;
- how will property and debt be divided
- who will own your home or will it be sold
- who will receive alimony, if anyone, and how much
- will either party have to pay the other party’s attorney’s fees
The financial issues are sometimes referred to as the “economic claims” in a divorce case. Depending upon which Pennsylvania county the complaint is filed, the divorce case and its economic claims may be heard by a judge, or by an attorney who works for the court and hears the case and makes a recommended order.
No-Fault and Fault Divorce
Pennsylvania has “no-fault” divorce and “fault” divorce. There are two types of “no-fault” divorce:
- divorce by consent
- divorce by separation for one year.
It is rare to see a “fault” divorce pursued in Pennsylvania, but there may be tactical reasons to file only for a “fault” divorce, and not for a “no-fault” divorce.
If a settlement is reached and both parties consent, a divorce decree can be obtained 90 days after a divorce complaint is served on the other party. Each party must file an affidavit consenting to the divorce. A party must be very careful not to sign an affidavit consenting to a divorce until all economic claims are resolved. If a divorce decree is issued by the court and a party has not resolved their economic claims, those claims will be forever waived.
If the parties have been separated for one year, a divorce decree may be entered based upon a one-year separation. What constitutes a “separation” can be the subject of litigation and the court may have to decide that issue. Parties can live under the same roof and be separated. On the other hand, if one party works in an area far from the primary marital home, the parties can arguably sleep in separate places most nights, but still live as a married couple and hold themselves out to the public as being married. The Pennsylvania Divorce Code provides that the date a divorce complaint is filed is the date of separation subject to a party proving otherwise. Also, even though the parties have been separated for one year, a court usually will not enter a divorce decree until all economic claims filed of record have been resolved. If a party fails to file their economic claims on the record, a court could enter a one-year separation divorce decree and a party could be deemed to have waived their economic claims.
Finally, the court cannot divide marital property until grounds for divorce are established. As stated above, grounds for divorce are consent, one-year separation, or fault. Therefore, unless both parties file affidavits consenting to the divorce, the court cannot enter a final order dividing property in a “no fault” case until one year after the date of separation. This provides a tactical advantage to the party that does not care about the timing of the divorce and a tactical disadvantage to the party that is in a hurry to obtain the divorce decree.
The information provided on this page should not be relied upon for legal advice and your individual situation should be discussed with an attorney. There is much more to filing a divorce complaint than can be described in this limited space. Contact me via email or by telephone to schedule an online or in-person appointment to discuss this claim further.
