Pennsylvania Divorce Procedures
Complete overview of Pennsylvania divorce laws for people considering a Pennsylvania divorce or filing a Pennsylvania divorce with issues to be resolved about child custody, child support, visitation and alimony.
Pennsylvania Divorce Residency Requirements
In order to file your Complaint for Divorce in Pennsylvania, you must make sure the Court of Common Pleas has jurisdiction over your case. The most common way spouses are eligible to use a specific court system is by meeting the residency requirements. Meeting the Pennsylvania residency requirements is typically only a concern for a spouse who has recently moved or is planning to move in the near future. The filing requirements are as follows:
Either spouse must be a resident of the state of Pennsylvania for at least six months prior to filing. A proceeding for divorce or annulment may be brought in the county: A.where the defendant resides; B.if the defendant resides outside of this Commonwealth, where the plaintiff resides; C.of matrimonial domicile, if the plaintiff has continuously resided in the county; D.prior to six months after the date of final separation and with agreement of the defendant, where the plaintiff resides or, if neither party continues to reside in the county of matrimonial domicile, where either party resides; or E.after six months after the date of final separation, where either party resides. (Pennsylvania Consolidated Statutes – Title 23 – Sections: 3104)
Since divorce is governed by state law, it is required that you meet specific residency requirements in order to file for a divorce in the state of Pennsylvania. It is most common that people file for a divorce in the county in which they live. If you are unsure of whether or not you meet the Pennsylvania residency requirements you can try contacting the Clerk’s office of the domestic relations or family law division of your county courthouse.
Pennsylvania Grounds for Divorce
The Complaint for Divorce is the initial document filed with the Pennsylvania court. It is in this document that the filing will request the court to terminate the marriage under certain specified grounds.
No-Fault Based Grounds:
The court may decree a divorce where it is alleged that the marriage is irretrievably broken and 90 days have elapsed from the date of filing or when the marriage is irretrievably broken and an affidavit has been filed alleging that the parties have lived separate and apart for a period of at least two years.
Fault Based Grounds:
1.Committed willful and malicious desertion period of at least one year. 2.Adultery. 3.By cruel and barbarous treatment, endangered the life or health of the injured and innocent spouse. 4.Bigamy. 5.Incarceration for at least 2 years. 6.Offered such indignities to the innocent and injured spouse as to render that spouse’s condition intolerable and life burdensome. (Pennsylvania Consolidated Statutes – Title 23 – Sections: 3301)
Every divorce case that is filed in the state of Pennsylvania must declare the grounds in which the divorce is to be granted. The grounds for divorce must be substantiated with evidence or testimony otherwise the court may dismiss the case. When you are petitioning the court for a divorce, or agreeing to a divorce, make sure that you completely understand the grounds and any potential legal repercussions.
Pennsylvania Uncontested Divorce
This information is an overview of the uncontested Pennsylvania divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those “do it yourself divorce” filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in Pennsylvania.
In order to file for divorce, either spouse must be a resident of Pennsylvania for at least six months before filing for divorce.
Pennsylvania offers divorce on two No-Fault grounds: mutual consent, which happens when the spouses agree that the marriage is irretrievably broken and 90 days have elapsed from the commencement of the action, and two-year separation, which happens when one of the parties refuses to consent to the divorce and the parties have lived separate and apart for two years. Fault grounds include adultery, endangerment, desertion, imprisonment for at least two years and indignities.
The cost of filing varies by county. Many of the forms used in Philadelphia County are different from the forms used in other Pennsylvania counties. Some counties have local rules and forms used only in their jurisdiction. In Pennsylvania, in all actions, the petitioner is called the Plaintiff and the respondent is called the Defendant. Divorce actions are filed in the Court of Common Pleas, which is a county court.
In general, the most simple divorce moves along this steps:
1. Filing necessary papers in the office of the prothonotary in the county court.
2. Notifying the spouse by sending him or her a copy of the filed court papers via certified mail or process server.
3. Negotiating the marital property settlement.
4. Both spouses signing an agreement called an Affidavit of Consent.
5. Filing a form called a Praecipe to Transmit Record with the prothonotary.
Step 1 is the filing of the Complaint in Divorce, which identifies the parties and asks the court to grant a divorce.
Step 2 is the Service of Process, which includes the Certificate of Service, documenting that the Defendant took possession of the Complaint and related court papers.
Step 3 is unique to each couple. It is the negotiation by which each couple arrive at a Marital Settlement Agreement — the terms and conditions of the division and distribution of assets and liabilities, child and spousal support, visitation.
Step 4 requires the completion of an Affidavit of Consent, which must be completed by each spouse and certifies agreement with the divorce.
Step 5 is the filing of the Praecipe to Transmit Record, which enters the divorce into the record. Step 5 also includes the filing with the prothonotary of the Affidavit of Consent, the Marital Property Settlement Agreement, a Record of Divorce or Annulment and Certificate (Proof of Service).
Some couples may have begun or even completed Step 3 before even filing the Complaint. These are the couples who most likely are negotiating what is called a Mutual Consent Divorce, under § 3301(c) — an uncontested, No-Fault action that ends a marriage in 90 days.
To be eligible for the Mutual Consent Divorce, a couple must:
a) Meet the residency requirement (at least one spouse must be a resident for at least six months prior to filing).
b) Have no minor or dependent children, or be in accord about custody and child support, so that there is no need for a hearing.
c) Be in accord about the terms and conditions of the Marital Settlement Agreement.
d) Each sign an Affidavit of Consent.
While the procedure for a Mutual Consent Divorce is simple, the action requires a number of forms. Not all of these forms are required in all circumstances, as will be evident, and some may be filed at the conclusion of the 90-day period. Many of the forms are different in Philadelphia County. The forms include the following:
a) The Civil Cover Sheet, which identifies the parties and the type of legal action: divorce. This is completed when the Complaint is filed, and the prothonotary assigns a docket number to the action. (This form is not used in Philadelphia County.)
b) The Notice to Defend and Claim Rights, which serves as a summons, warns the Defendant that a failure to respond means a default judgment may be entered against him or her. (In Philadelphia County, the Notice to Defend and Claim Rights is incorporated on the first page of the Complaint in Divorce, so people filing there omit this form.) This form informs the Defendant that if he or she does not file a claim for alimony, division of property, lawyer’s fees or expenses before a divorce or annulment is granted, he or she may lose the right to claim them.
c) The Complaint in Divorce, which is the primary form, identifies the parties and cites the reason for the divorce.
d) The Affidavit, which certifies the truth of the Complaint, is attached to it. (The Affidavit is not used in Philadelphia County, which uses a verification at the end of the complaint.)
e) The Court of Common Pleas Intake form, which provides the court with basic information, i.e., if the marriage is with or without children and if there is a custody filing for children under 18. (This form is not used in Philadelphia County.)
f) The Domestic Relations Income and Expense Statement, which provides the court with information about spouses’ employment, available health insurance and income. (This form is not used in Philadelphia County.)
g) The Notice of File Social Security Numbers form, which provides the prothonotary the Social Security numbers of both spouses.
Ninety days after the filing of the Complaint, the following documents must be filed:
a) The Marital Property Settlement Agreement, which spells out the terms and conditions of the division and distribution of the marital estate. Except in Philadelphia County, there is no preapproved, standard form for this agreement, and a lawyer generally writes one customized to the circumstances of the divorcing couple.
b) The Acknowledgment(s), which are attached to the Marital Property Settlement Agreement, is/are signed by the defendant and the plaintiff certifying the truth of the Marital Property Settlement Agreement.
c) The Affidavit(s) of Consent/Consent Waiver(s), which are each signed by each spouse, certify that the plaintiff and the defendant both agree to the divorce. (In Philadelphia County, both parties sign a Waiver of Notice of Intention to Request Entry of a Divorce Decree instead of the Affidavit(s) of Consent/Consent Waiver(s).)
d) The Support Guideline Computation – Child Support, which illustrates the calculations used to determine child support, if applicable.
e) Notice of Intention to Request Entry of Divorce Decree, which informs the Defendant that unless he or she answers, an entry of divorce will be made.
f) The Praecipe to Transmit Record, which requests that the Prothonotary transmit all the divorce paperwork to the court in preparation for the divorce decree. (Philadelphia County has its own form for the praecipe.)
g) The Decree of Divorce, signed by the judge, which ends the marriage. (Philadelphia county has two forms — one entitled “Decree” is used for divorces with a Marital Property Settlement, the other entitled “Decree and Order” for divorces without a Marital Property Settlement.)
h) Record of Divorce or Annulment, which is used after the divorce has been granted. This information is conveyed to the Vital Records office of the Department of Health. (Philadelphia County has its own form.)
i) Notice of Intention to Retake Prior Name, which is used when one spouse, usually the wife, wants to reclaim her birth name. This form may be filed with the Praecipe to Transmit Record, and should be filed no later than five days from the entry of the Decree of Divorce.
The Notice to Defend and Claim Rights, the Complaint in Divorce and the Acknowledgment are served on the defendant as part of the service of process.
In Philadelphia County, the general trajectory of the Mutual Consent Divorce is generally the same as other Pennsylvania county. However, Philadelphia County has other procedures and unique forms that must be used there. The Mutual Consent Divorce begins with the filing of the Complaint for Divorce and a Domestic Relations Information Sheet, which provides basic information about the couple and their children. Both the Complaint and the Information Sheet are forms unique to Philadelphia County.
Ninety days after the filing of the Complaint, the following documents must be filed using the Philadelphia County forms as applicable:
a) The Martial Property Settlement Agreement. (This is a special form in this county.)
b) Acknowledgment, one each signed by both parties.
c) A Waiver of Notice of Intention to Request Entry of Divorce Under §3301(c), signed by Plaintiff and Defendant.
d) A Notice of Intention to Request Entry of § 3301(d) Divorce Decree, if the spouse is not represented by an attorney; or Notice of Intention to Request Entry of Divorce Under Section 3301(c) if the spouse is represented by an attorney, signed by the Plaintiff.
e) The Praecipe. (This is a form unique to Philadelphia.)
f) The Divorce Decree. (In Philadelphia County this is obtained from the family court.)
g) Record of Divorce or Annulment.
h) Notice of Intention to Retake Prior Name is used when one spouse, usually the wife, wants to reclaim her birth name. This form may be filed with the Praecipe to Transmit Record, and should be filed no later than five days from the entry of the Decree of Divorce.
The standard uncontested divorce is used when 1) a spouse cannot or will not be located, or 2) when he or she will not active cooperate with the mutual consent divorce but not actively oppose it. In this routine, the spouses must live separate and apart for at least two years. Many of the forms are the same as those used in the Mutual Consent Divorce, both in Philadelphia County and in the other Pennsylvania counties.
In the Complaint, the plaintiff also refers to §3301(c) (“Mutual Consent”) in case he or she manage an agreement with the other spouse, but the Complaint cites §3301(d) (“Irretrievable breakdown”) as the ground for the action.
The action begins with the filing of the Civil Cover Sheet, the Notice to Defend and Claim Rights, the Complaint in Divorce, the Affidavit, the Court of Common Pleas Intake, the Domestic Relations Income and Expense Statement. These forms are identical to the forms filed in a Mutual Consent Divorce, and with the same exceptions noted above for Philadelphia County. Later, to conclude the case, the Support Guideline Computation – Child Support, Notice of Intention to Request Entry of Divorce Decree, the Praecipe to Transmit Record, the Notice to File Social Security Numbers, Decree of Divorce, Record of Divorce or Annulment, Notice of Intention to Retake Name are also filed in the same way.
At the onset at least, in a standard uncontested divorce, a Marital Property Settlement, Acknowledgment(s) and Affidavit(s) of Consent are absent. If the couple achieve an agreement before a divorce hearing, the plaintiff must file the Marital Property Settlement Agreement, Acknowledgment(s), Affidavit(s) of Consent. These forms are filed as would be done if the divorce moved by Mutual Consent.
Like the Mutual Consent Divorce, Philadelphia County uses its own forms for a standard uncontested divorce. These include the Domestic Information Sheet and the Complaint in Divorce. In a standard uncontested divorce, the plaintiff must also complete a Plaintiff’s Affidavit Under Section 3301(d) of the Divorce Code. To complete the filing, the plaintiff must file Notice of Intention to Request Entry of § 3301(d) Divorce Decree (Cases Under Section 3301(c) of the Divorce Code, if the spouse is not represented by an attorney; or Notice of Intention to Request Entry of Divorce (for cases under Section 3301(c), if he or she is represented by an attorney); and the Praecipe to Transmit Record.
For divorces with a Marital Property Settlement Agreement, the Divorce Decree is entitled “Decree”; for those without a settlement, it is entitled “Decree and Order.” In addition, the Record of Divorce or Annulment and the Notice to Intention to Retake Prior Name must also be filed. If agreement is reached along the way, the parties must file a Marital Property Settlement Agreement, Acknowledgment(s), one each by each spouse and attached to the settlement agreement, and Waivers of Notice to Request Entry of a Divorce Decree Under § 3301(c) of the Divorce Code (signed, respectively, by the plaintiff and by the defendant).
In the case of a contested divorce, almost all of the forms and filing procedures are identical to those for an uncontested divorce. Philadelphia has its own forms, which are identical to those used in that county for an uncontested divorce.
Two additional forms must be added after the initial filing in most counties in Pennsylvania. These are the Notice of Intention to Request Entry of Divorce Decree and the Counteraffidavit Under § 3301(d).
Both these forms must be served with the Complaint and before submission of the final documents. The Notice informs the Defendant that if he or she does not answer the Plaintiff’s action, the court can enter a final decree of divorce. The Counteraffidavit states that the Defendant objects to the action because 1) the parties have not lived separate and apart for two years and 2) the marriage is not irretrievably broken.
Moreover, In Philadelphia County, the Plaintiff must file a Notice of Intention to Request Entry of § 3301(d), if the spouse is not represented by an attorney; or Notice to Request Entry of Divorce (Cases Under § 3301(c), if the spouse is represented by an attorney.
If a spouse disappears and/or will not accept Service, the Plaintiff must serve Notice by serving his or her spouse the process by certified mail/ return receipt requested at his or her last known address. If that fails to produce a response, the Plaintiff must serve Notice by Publication. This requires a good faith effort to locate the missing spouse, following by publication of the Notice over a period of week in a newspaper.
Pennsylvania Simplified Divorce Procedures
The spouses may file for divorce on the grounds of irretrievable breakdown of the marriage and if both spouses consent to the divorce, it will be handled in an expedited manner. There are official sample forms for filing a complaint for divorce on the grounds of irretrievable breakdown of the marriage. There are also official forms available for filing the required affidavit of consent. There are also other sample divorce proceeding forms available in Pennsylvania Rules of Civil Procedure, Actions of Divorce of Annulment Section, Rule 1920.01+. In addition, separation agreements are expressly authorized. [Pennsylvania Consolidated Statutes Annotated; Title 23, Section 3301 and Pennsylvania Rules of Civil Procedure; Rules 1920.01+].
Each state has its own unique filing procedure. When filing for divorce in Pennsylvania, you must adhere to the strict filing guidelines and prepare and submit the appropriate mandatory divorce documents to the county court. You will discover that some documents may be provided by the Pennsylvania Legal System and others must be constructed on a case-by-case basis containing certain information and criteria to adhere to the Pennsylvania Laws and the filing requirements.
Pennsylvania Property Division Factors
In Pennsylvania, the property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award is actually order and decreed by the Court of Common Pleas within the Decree of Divorce.
Pennsylvania is referred to as an “equitable distribution” state. When the parties are unable to reach a settlement, the Court of Common Pleas will take the following approach to dividing the assets; First, it will go through a discovery process to classify which property and debt is to be considered marital. Next, it will assign a monetary value on the marital property and debt. Last, it will distribute the marital assets between the two parties in an equitable fashion. Equitable does not mean equal, but rather what is deemed by the Court of Common Pleas to be fair.
When making a property award, the court will consider the following: A.The duration of the marriage. B.Any prior marriage of either party C.The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties. D.The contribution by one party to the education, training or increased earning power of the other party. E.The opportunity of each party for future acquisitions of capital assets and income. F.The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits. G.The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property H.The value of the property set apart to each party. I.The standard of living of the parties established during the marriage. J.The economic circumstances of each party, including Federal, State and local tax ramifications, at the time the division of property is to become effective. K.Whether the party will be serving as the custodian of any dependent minor children. (Pennsylvania Consolidated Statutes – Title 23 – Sections: 3501, 3502, 3505).
Since Pennsylvania is an “Equitable Distribution” state, all marital property will be divided in an equitable fashion according to the court unless agreed to otherwise by the divorcing spouses. What does “equitable” mean? Equitable can be defined as “what is fair, not necessarily equal.” To automatically believe the marital property would be divided 50-50 would be a wrong assumption in any equitable distribution state.
Pennsylvania Spousal Support/Maintenance/Alimony Factors
In Pennsylvania the support payments (if any) can certainly influence how the marital property distribution is awarded, which is why it can become a very intricate part of the final outcome of any divorce. Keeping this in mind, if you and your spouse are unable to reach and agreement on this issue, the Court of Common Pleas will order support from one spouse to the other on a case-by-case basis as follows:
When determining the amount and duration of support, the court will consider the following: A.The earning potential and earning capacities of the parties. B.The ages and health condition of the parties. C.The income of the parties. D.The expectancies and inheritances of the parties. E.The length of the marriage. F.The contribution by one party to the earning capacity of the other. G.The extent to which the earning power, expenses or financial obligations of a party will be affected by reason of serving as the custodian of a minor child. H.The standard of living of the parties established while married. I.The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment. J.The relative assets and liabilities of the parties. K.Any pre-marital property. L.The contribution of a spouse as homemaker. M.The relative needs of the parties. N. Any marital misconduct or fault O.Tax consequences P.Whether the party seeking alimony lacks sufficient property Q.Whether the party seeking alimony is incapable of self-support through appropriate employment. (Pennsylvania Consolidated Statutes – Title 23 – Sections: 3701, 3702, 3704, 3706).
Pennsylvania Child Custody Factors
In Pennsylvania, the court will order partial custody or visitation to either parent with the best interests of the children as a standard for all decisions. The court shall consider, among other factors, which parent is more likely to encourage, permit and allow frequent and continuing contact and physical access between the noncustodial parent and the child. In addition, the court shall consider each parent and adult household member’s present and past violent or abusive conduct which may include, but is not limited to, abusive conduct as defined under the act of October 7, 1976 (P.L.1090, No.218), known as the Protection From Abuse Act.
In Pennsylvania, as with all other states, the court will always be looking out for the best interests of the children. What you want or your spouse wants is not really relevant until the court says it is. Many parents go to custody hearings not realizing that they must portray themselves as the best custodial parent rather pleading to the court that they simply deserve the children. The court would much prefer the parents to decide who should have custody, but if they can’t, the court will do it for them.
Pennsylvania Child Support Factors
Either or both parents may be ordered to provide child support according to their ability to pay. The factors for consideration set out by statute are: (1) the net income of the parents; (2) the earning capacity of the parents; (3) the assets of the parents; (4) any unusual needs of the child or the parents; and (5) any extraordinary expenses. Child support payments may be ordered to be paid through the Domestic Relations Section of the court. There are official child support guidelines available and these are presumed to be correct unless there is a showing that the amount would be unjust of inappropriate under the particular circumstances of a case. The court may require that health insurance coverage be provided for any child if it is available at a reasonable cost. Child support payments may be ordered to be paid through the Domestic Relations Section of the court. [Pennsylvania Consolidated Statutes Annotated; Title 23, Section 4322 and Pennsylvania Case Law].
Pennsylvania child support is typically calculated by using a Child Support Worksheet. The worksheet will generate an appropriate Pennsylvania child support obligation according to each spouse’s income and other relative numeric factors such as taxes paid and retirement contributions, etc.. Once this amount is determined it is essential to take a look at any appropriate Pennsylvania child support deviation factors that may be applicable to the situation.
Pennsylvania Grandparent’s Rights
Grandparent Rights to Visitation: Visitation may be granted when at least one of the parents of the child is deceased, when the parents’ marriage is dissolved or the parents have been separated for six months or more, or when the child has resided with the grandparents for twelve months or more and is subsequently removed from the home by his parents. The court must find that the visitation is in the best interest of the child and will not interfere with the parent-child relationship and must consider the amount of personal contact between the child and the grandparent prior to the application. Title 23, Section 5311 (23 Pa.C.S.A. § 5311 et seq.).
When Adoption Occurs: Visitation rights terminate unless the child is adopted by either a stepparent or grandparents.
Child Custody Statutes: Best interest of child based upon which party is more likely to encourage and allow frequent and continuing contact with the other parent. 23 Pa.C.S.A. § 5300 et seq.
Parents May Choose: Yes
Pennsylvania Military Divorce Laws
A Pennsylvania military divorce creates several unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules will apply.
Military Protection From Pennsylvania Divorce Proceedings
There are laws set up to protect active duty military members against being held in “default” from failing to respond to a divorce action. These laws were enacted to protect active military from being divorced without knowing it.
Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local Pennsylvania court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (This is typically the case when the active member is serving in a war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.
Serving an Active Military Spouse
The active duty spouse must be personally served with a summons and a copy of the divorce action in order for a Pennsylvania court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.
Residency and Filing Requirements
The typical military divorce filing requirements are as follows:
1. You or your spouse must reside in Pennsylvania
2. You or your spouse must be stationed in Pennsylvania
Grounds for Pennsylvania Military Divorce
The grounds for a military divorce in Pennsylvania are the same as a civilian divorce.
Dividing the Property
Along with the normal Pennsylvania property division laws, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.
The federal laws will not divide and distribute any of the military members retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.
Child Support and Spousal Support
In Pennsylvania, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances. The normal Pennsylvania child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid.
Pennsylvania Child Support Guidelines
The Pennsylvania child support guidelines “at a glance” provides a quick reference to what applicable child support laws are considered and/or not considered when determining the appropriate Pennsylvania child support order.
Pennsylvania Child Support Guidelines
Income Share Model *: YES
Percent of Income Model *: NO
Worksheets Available: YES
Extraordinary Medical Expenses Add on: YES
Childcare Add on: YES
Secondary Education Support: NO
* The Income Shares Model: Pennsylvania child support is calculated by estimating the amount of support that would have been available to the child(ren) if the family had remained intact. This estimated amount is then divided proportionally to the parents according to each parent’s income. This is easily done by using the Pennsylvania child support worksheet and the estimated incomes are typically substantiated by past pay stubs or w-2s.
For example: If the father has a higher income than the mother, he would then be responsible for the greater portion of the child support obligation. Conversely, if the father has a lower income than the mother, he would then be responsible for the smaller portion of the child support obligation.
As a reminder, the child support obligation can manifest itself differently between a custodial and a noncustodial parent.
For example: It is not common for a custodial parent to be paying support to a non-custodial parent.
Pennsylvania Child Support Definitions
Pennsylvania Child Support:
Either or both parents may be ordered to provide child support according to their ability to pay. The factors for consideration set out by statute are:
(1) the net income of the parents;
(2) the earning capacity of the parents;
(3) the assets of the parents;
(4) any unusual needs of the child or the parents; and
(5) any extraordinary expenses.
Child support payments may be ordered to be paid through the Domestic Relations Section of the court. There are official child support guidelines available and these are presumed to be correct unless there is a showing that the amount would be unjust or inappropriate under the particular circumstances of a case. The court may require that health insurance coverage be provided for any child if it is available at a reasonable cost. [Pennsylvania Consolidated Statutes Annotated, Title 23, Sections 4322 and Pennsylvania Case Law].
1. Monthly Gross Income:
Monthly gross income is ordinarily based upon at least a six-month average of all of a party’s income. The term “income” is defined by the support law, 23 Pa.C.S. § 4302, and includes income from any source. The statute lists many types of income including, but not limited to:
(1) wages, salaries, bonuses, fees and commissions:
(2) net income from business or dealings in property:
(3) interest, rents, royalties, and dividends:
(4) pensions and all forms of retirement:
(5) income from an interest in an estate or trust:
(6) social security disability benefits, social security retirement benefits, temporary and permanent disability benefits, workers’ compensation and unemployment compensation:
(7) alimony if, in the discretion of the trier of fact, inclusion of part or all of it is appropriate: and
(8) other entitlements to money or lump sum awards, without regard to source, including lottery winnings, income tax refunds, insurance compensation or settlements: awards and verdicts: and any form of payment due to and collectible by an individual regardless of source.
Monthly Gross Income Does Not Include:
Neither public assistance nor Supplemental Security Income (SSI) benefits shall be counted as income for purposes of determining support.
Reduced or Fluctuating Income:
(1) Voluntary Reduction of Income. Where a party voluntarily assumes a lower paying job, there generally will be no effect on the support obligation. A party will ordinarily not be relieved of a support obligation by voluntarily quitting work or by being fired for cause.
(2) Involuntary Reduction of Income. No adjustments in support payments will be made for normal fluctuations in earnings. However, appropriate adjustments will be made for substantial continuing involuntary decreases in income.
(3) Seasonal Employees. Support orders for seasonal employees, such as construction workers, shall ordinarily be based upon a yearly average.
(4) Income Potential. Ordinarily, a party who willfully fails to obtain appropriate employment will be considered to have an income equal to the party’s earning capacity. Age, education, training, health, work experience, earnings history and child care responsibilities are factors which shall be considered in determining earning capacity.
2. Low Income Cases:
(1) In computing a basic spousal support or alimony pendente lite obligation, the presumptively correct amount of support shall not reduce the obligor’s net income below $550 per month. For example, if obligor earns $600 per month and obligee earns $300 per month, the formula in Part IV of Rule 1910.16-4 would result in a support obligation of $120 per month. Since this amount leaves the obligor with only $480 per month, it must be adjusted so that obligor retains at least $550 per month. The presumptively correct minimum amount of spousal support, therefore, is $50 per month in this case.
(2) When the obligor’s monthly net income is $550 or less, the court may award support only after consideration of the obligor’s actual living expenses.
3. High Income Child Support Cases.
When the parties’ combined net income exceeds $15,000 per month, child support shall be calculated pursuant to Melzer v. Witsberger. 505 Pa. 462, 480 A.2d 991 (1984). The Presumptive minimum amount of child support shall be obligor’s percentage share of the highest amount of support which can be derived from the schedule or the chart for the appropriate number of children and using the parties’ actual combined income to determine obligor’s percentage share of this amount. The court may award an additional amount of child support based on the remaining combined income and the factors set forth in Melzer.
4. Shared Custody. Under the prior guidelines there was no formula or procedure for deviating from the basic support guidelines when custody is shared equally or the non-custodial parent has substantial or partial custody. The guidelines provided that the obligor’s support obligation should be reduced only if he or she spent “an unusual amount of time with the children.” Yet, there have been several decisions rejecting deviation even if the obligor spends almost 50% of the time with the children. See. e.g.. Anzalone v. Anzalone, 449 Pa. Super. 201, 673 A.2d 377 (1996)(40% time was not “unusual”) : Dalton v. Dalton, 409 Pa. Super. 258, 597 A.2d 1192 (1991)(43% time did not justify deviation).
It is generally agreed, however, that there should be some reduction in the support obligation in these cases to reflect the decrease in the obligee’s variable expenses and the increase in obligor’s fixed and variable expenses as a result of the children spending substantially more time with the obligor. As part of its four year review of the guidelines, the Committee examined seven different methods being used by other states but found that none of them met these objectives without introducing a substantial reduction in the support obligation at some income levels or income differentials for relatively small increases in custodial time. As a result, the Committee initially recommended the alternative solution of no reduction at all for time spent with the children. Based on the comments received, however, the Committee reconsidered this recommendation and ultimately selected a method which gives some recognition to the shift in child-related expenditures that occurs when the obligor spends a substantial amount of time with the children. This method is set forth in Rule 1910.1 6-4(c) and has been built into the formula used to calculate the presumptively correct amount of the support obligation. While not a perfect solution to the problem of establishing support obligations in the context of substantial or shared custody, it is better than the previous void and preferable to the many other methods developed by local courts which effectively reduced the support obligation out of proportion to the increase in custody time. Its chief advantage is that there is no sharp reduction in the obligation at the 40% threshold. It also provides statewide uniformity. The method does not, however, result in $0 when there is equal custody and equal income. In those cases, therefore, the Rule provides for a cap to reduce the obligation so that the obligee does not receive a larger portion of the combined income than the obligor. Although this cap may in some cases result in a substantial reduction between 45-50% time, the Committee is not aware of an existing model that does not create some “cliff effect” at some level at some point in time. This model was chosen over others because the cases which involve truly equal time-sharing and equal incomes continue to represent a small percent of support cases.
5. Multiple Families. The Committee has chosen to retain the existing approach for establishing multiple child and spousal support obligations. New Rule 1910.16-7 sets forth the method for calculating child support obligations so that all of the obligor’s children continue to have equal access to his or her resources and no child receives priority over the other children.
6. Child Care Expenses. Whereas the prior rules provided for equal sharing of these expenses. Rule 1910.16-6(a) now provides for proportionate sharing based on the parties’ net incomes so that these expenses are allocated in the same manner as other expenses which are typically added to the basic support obligation. The Rule also reflects the availability and limitations of the federal child care tax credit which can be claimed by the custodial parent.
7. Health Insurance Premiums. Under the prior rules, the portion of the cost of health insurance premiums which benefit the other party or the children was deducted from the party’s net income. This provided little incentive for either party to obtain or maintain health insurance coverage for the benefit of the other family members. If the obligor was giving the premium, it reduced the basic support award only marginally. If the obligee was paying the premium, he or she received virtually no financial credit at all in terms of a higher support award. To maximize the value for the party carrying the health insurance, new Rule 1910.16-6(b) treats the cost of the premium as an additional expense subject to allocation between the parties in proportion to their net incomes. This more accurately reflects the costs of carrying such insurance and also ensures that the obligee receives some financial credit for carrying the insurance. The new Rule also permits allocation of the entire premium, including the party’s portion of the premium, when the insurance benefits the other party or the children. This change provides further incentive for parties to obtain health insurance for the benefit of the other party and the children.
8. Unreimbursed Medical Expenses. There are three changes to the treatment of unreimbursed medical expenses. First, since the first $250 per year per child of these expenses is already built into the basic child support obligation reflected in the chart and the schedule, only medical expenses which exceed this amount are subject to allocation between the parties as an additional expense to be added to the basic support obligation. The definition of medical expenses is amended to include insurance co-payments, deductibles. and orthodontia and to exclude chiropractic services.
Pennsylvania Divorce Definitions
This collection of definitions will help clarify some unique characteristics to the Pennsylvania Divorce laws, process and paperwork which is filed with the court.
Filing Party Title:
The spouse who will initiate the Divorce by filing the required paperwork with the court.
Non-Filing Party Title:
The spouse who does not initiate the Divorce with the court.
Court of Common Pleas, ___________ County, Pennsylvania
The proper name of the court in which a Divorce is filed in the state of Pennsylvania. Each jurisdictional court typically has a domestic relations or a family law department or division.
The state run office devoted to enforcing existing child support orders and collecting any past due child support.
In Re the Marriage of:
The lead-in verbiage used in the legal caption or header of the documents filed with the court. The introduction typically prefaces both spouse’s names.
Initial Divorce Document:
Complaint for Divorce
The title and name of the legal document that will initiate the Pennsylvania Divorce process. The filing spouse is also required to provide the non-filing spouse a copy of this document.
Final Divorce Document:
Decree of Divorce
The title and name of the legal document that will finalize the Pennsylvania Divorce process. This document will be signed by the judge, master, or referee of the court to declare your marriage officially terminated.
Clerk’s Office Name:
County Clerk’s Office of the Court of Common Pleas
The office of the clerk that will facilitate the Divorce process. This is the title you would address letters to or ask for when contacting the courthouse.
The spouses may enter into a binding separation agreement if it is made on reasonable terms. There is no residency requirement specified by statute. [Pennsylvania Consolidated Statutes Annotated; Title 23, Section 3301].
The applicable Pennsylvania law that will dictate how property and debt is to be divided upon Divorce.
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