By its nature, divorce is an emotionally taxing ordeal. Legal counsel is well aware, or should be, that the prospective client or client with whom he or she is speaking seeks assistance at very likely one of the low points of their lives. Being so, it is incumbent upon legal counsel to clearly explain the statutory and procedural process of divorce.
From a procedural standpoint, divorce litigation is generally straightforward. One party prepares and files with the court a “Complaint in Divorce,” which must be properly served upon the opposing party. Once served, the court is notified of the same and the process begins.
Pennsylvania Divorce Statutory Law
Pennsylvania statutory law provides two bases or “grounds” for divorce; no-fault and fault. It is an odd notion to characterize the end of a marriage as being without fault on either or both parties. That said, the statutory language, specifically, Sections 3301(c) and (d) of the Divorce Code, describe a no-fault divorce as simply one wherein the marriage is “irretrievably broken.”
For context and reference, Section 3301(c) of the Divorce Code provides that the parties consent to the divorce, but must allow 90 days to pass before a decree in divorce may be issued. Section 3301(d) of the Divorce Code provides grounds based upon a showing that the parties have lived “separate and apart’ for a minimum of one (1) year. It is within the aforementioned Complaint in Divorce that divorce grounds will be noted.
Fault Grounds for Pennsylvania Divorce
Fault-based divorce sets forth certain circumstances and/or marital misconduct that must be proven, and it is the accusing party who bears the burden to establish the same. For example, infidelity is grounds for a fault divorce. While infidelity is an extraordinarily common impetus for divorce, the vast majority of litigants opt for a no-fault divorce because, among other reasons, the burden to prove infidelity may be litigious, expensive, extraordinarily stressful, and without much utility in terms of financial benefit, aside from a possible monetary increase to a potential award of alimony. In sum, very few divorces are litigated on fault grounds.
No-Fault Grounds for Divorce
Notwithstanding the terminology, litigants pursuing not-fault grounds for divorce may very well introduce facts and circumstances which may bear on the outcome. Setting aside for the moment the expected and justified emotional upheaval, divorce litigation is financially focused. In other words, the marital assets and debts, if any, will be addressed. Without going into too much detail, Pennsylvania statutory law calls for “equitable distribution” of the marital estate. It is from this foundation that the aforementioned facts and circumstances may influence the manner in which the marital assets are distributed.
Equitably Dividing Marital Property
“Equitable” does not mean equal, however, absent any facts to influence the analysis, the baseline presumption is that the marital estate will be divided equally. That said, Pennsylvania statutory law provides ten (10) factors to consider when equitably dividing marital property. One such factor is the contribution or dissipation of each party in the acquisition, appreciation and/or deprivation of marital property.
Notwithstanding the “no-fault” terminology discussed above, within this and the other factors, litigants may introduce facts that infer, or directly accuse, the other party of wrongdoing. If the assertions made by one party against the other are considered, it may influence what would presumptively be a 50/50 split to a, for instance, 55/45, 60/40 or even 65/35 percentage distribution of marital property.
Arbitration for Divorce
So, who is the arbiter determining “equitable” division of marital assets? The simple answer is that the Court ultimately makes the determination. That said, in most instances, the parties never once step in court for the entirety of divorce litigation. Most cases are settled upon extensive negotiations by and between counsel and their respective clients. The parties exchange financial documentation, an agreement is made that the entirety of the marital estate has been disclosed, and counsel set on the task to negotiate an optimally beneficial settlement.
Following hopefully successful negotiations, a Postnuptial Agreement is drafted (generally by one counsel), additional procedural requirements are met, and the matter is forwarded to the presiding judge for final review. Thereafter, a decree is issued, forever divorcing the parties from the bonds of matrimony, the Postnuptial Agreement thereafter carries the force of law and is binding on the parties.
Certain other components and subtleties of the divorce process have not been discussed herein. That said, the above is a general overview of what can be expected upon the filing of a Complaint in Divorce in Pennsylvania. Future articles will address the process should the parties fail to reach an agreement through counsel.
If you need legal help and guidance in your divorce process, contact the team at Pyfer Reese today. Each case is unique and should have personal consideration from trusted professionals to ensure the accuracy of information. We offer virtual, phone, and in-person consultations.