The Law of Divorce
Divorce, custody, child support and alimony are matters of state law. In a divorce, issues of property division, child support, child custody, and alimony are decided by the judge in a trial, or agreed on by the parties in a Separation Agreement, which can be negotiated by their lawyers or in mediation.
Pennsylvania lists several grounds for divorce in its statutes, including (1) adultery; (2) conviction of a felony and sentence to prison; (3) cruelty [usually meaning repeated physical abuse]; (4) desertion at least one year ago; and (5) “living apart” , the no-fault ground, which means living apart continuously and permanently for one year (or six months, if you have no children and a Separation Agreement).
While all of these grounds for divorce are recognized as valid by Pennsylvania courts, a divorce is not granted until one of the above grounds is proved to the court. At some point in the divorce process, a hearing or a deposition will take place during which at least one spouse and at least one witness must testify. Even if the grounds for divorce are uncontested, this hearing is a necessary part of the divorce process. The facts of your case, and which city or county you live in, will also affect how long it will take for the divorce process to be completed.
The essential steps in the divorce process are:
(1) The “Bill of Complaint for Divorce” is filed by one spouse, who is called “the Complainant”, and is served on the other spouse, “the Defendant,” by a process server, or by the other spouse signing an Answer, a Waiver or an Acceptance of Service, or by other legal means of Process Service.
(2) After the Defendants “Answer” is filed, or 21 days have passed without the filing of an answer, the complainant’s lawyer can file to have the case referred to a “commissioner in chancery” for a hearing on the grounds of the divorce. The commissioner, after hearing the evidence, will file a recommendation that the judge grant a divorce. In some counties, evidence is instead heard by a judge, or in a deposition.
(3) If there is any disagreement on matters of custody, support or property division, these matters must be heard by a trial judge in open court, and decided, before the divorce decree can be signed by the judge. One of the spouses’ lawyers drafts the divorce decree and any other court orders.
(4) If there is no dispute about the grounds of divorce and everything has been agreed upon, a draft decree is then filed with the judge, who often has law clerks review its wording.
(5) When the final decree is signed by the judge, the spouses are divorced.
This list of steps is not all-inclusive; it is very brief and provides only a summary of the process involved. Not included is the approximate amount of time between each of the steps or the delays or additional steps that are possible because of specific details of the case, ideas the judge may have, or local rules requiring “custody education” and mediation evaluation.
In most cases, negotiation of the divorce settlement not only expedites the process, but also makes it somewhat less expensive. Face-to-face Mediation with both spouses is sometimes used to supplement negotiation. If negotiation or mediation is successful, the resulting “Separation Agreement” or “Property Settlement” is legally binding on both parties. At the time of the actual divorce decree it can be presented to the judge and made part of the divorce decree itself, thus becoming a court order, enforceable by the contempt-of-court process if it is violated.
Important to note in considering divorce are the legal costs involved as well as the court costs (such as the court’s filing fees, court reporters, and process servers, which are separate from attorney fees). Attorney’s fees may be under $1,000 for a totally uncontested, completely simple divorce, or a few thousand dollars for an unusually easy divorce, but more contentious divorces cost tens of thousands of dollars, sometimes hundreds of thousands.