The Family Court Process
Seeking a divorce is a painful and confusing time. If you have children, it’s even more complicated – you want what’s best for your family while you and your ex reach a satisfactory agreement. You need a sensitive and skilled lawyer to guide you through the entire family court process.
To obtain a divorce in Pennsylvania in the past, one spouse had to prove ‘fault’ by the other spouse. That is no longer the case – a Pennsylvania divorce may now be obtained without fault. However, the Pennsylvania fault divorce still exists as a legal option. In certain circumstances, it may be economically advantageous or psychologically beneficial for one party to pursue a fault divorce.
Fault vs. No-Fault Divorce
A fault divorce requires some type of legal ‘fault’ committed by the opposing party, such as adultery, bigamy, indignities (a catch-all category for general mistreatment), or abandonment. The grounds for a fault divorce are defined by statute.
Further, the party seeking a fault divorce cannot themselves be at fault or have condoned or subsequently ratified the faulty behavior, such as where a party resumes marital relations with a spouse known to have committed adultery.
In contrast to a fault divorce, a no-fault divorce in Pennsylvania does not require proof of fault. The only requirement is that one or both parties want the divorce. No-fault divorces are simpler and generally less contentious.
The vast majority of Pennsylvania divorces proceed as no-fault divorces. This is true even if fault is present, because parties do not generally want to testify in open court to establish fault grounds. The length of time it takes to obtain a no-fault divorce is dependent on whether both parties agree to proceed.
No-fault divorces can proceed as soon as 90 days after the divorce complaint is served. However, in fault divorces or where one spouse does not want the divorce or will not agree to a no-fault divorce, the divorce cannot proceed until one year has elapsed from the date of separation. Under law, this is presumed to be the date the divorce was filed, although the presumption is rebuttable if evidence of another date of separation is presented at a hearing.
Thus, a disagreeable spouse or his or her divorce lawyer can potentially delay a divorce for a year or more, all while continuing to receive economic benefits from the marriage, such as spousal support and residence in the marital home.
A party might desire to expedite the divorce for any number of reasons.
For example, they:
- may no longer wish to support their estranged spouse economically may want to sell the marital residence
- may want to finally separate themselves from their estranged spouse
In these cases, a party can allege grounds for a fault divorce, and then request a hearing to establish and prove the required legal grounds. In most Pennsylvania Divorces, the process for establishing fault grounds consists of a record Divorce Masters’ hearing, and then potentially a court trial if one party disagrees with the Divorce Masters’ recommendation.
In most cases with a fault hearing pending, parties are more likely to give consent to a divorce to avoid having any details of inappropriate conduct aired in court.
Economic considerations, emotional factors, and custody issues can all come into play when deciding whether it is advantageous to attempt to proceed on fault ground. If you’re considering this option, you need to discuss the matter with a divorce lawyer.
Whether you and your spouse have separated, are officially going through a divorce, or you and your child’s other parent were never married, Pennsylvania custody laws require that one of you begin the court process. To obtain custody of your child, you must go to court to gain approval on a mutually agreed-upon arrangement from a judge, or to have a judge decide your parenting plan.
You and your child’s other parent have the right to decide a child custody agreement yourselves. However, if you are divorcing or unmarried, you should go to court to formalize the arrangement. If you do not formalize your agreement formalized in a court order, then you may find yourself facing a custody battle in the future.
You may file a complaint requesting a certain amount of legal and physical custody of your child. If this is part of a divorce, it will be addressed in your initial divorce complaint. If this dispute is not part of a divorce, then it is considered an independent action.
When you file the first legal documents, you are responsible for providing your child’s other parent with service of process so that they are adequately notified of the court case. If your child’s other parent begins the legal matter, then you will be served with these documents advising you when to appear in court.
If you receive unexpected paperwork about child custody or divorce, you need to contact a custody lawyer immediately. When a child custody dispute goes to court, the judge may require you and the other parent to go through mediation. This is an out-of-court process during which a mediator guides the conversation, enabling you and the other parent to make crucial decisions together. The mediator does not make any final decisions or have any ability to control the outcome.
If mediation is not required or fails, then the decision is put to the court. You and your child’s other parent can present the court with the amount of custody you each believe you should have, and evidence that supports your claim. The judge will review all of the circumstances, consider a number of factors, and then hand down a decision.