Family Law FAQs
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The FAQ section provides general answers to commonly asked questions regarding laws in PA and NJ. The information provided should not be construed as legal advice and nothing herein should be construed as creating an attorney client relationship. It is highly advised that you meet with an experienced law practitioner AS SOON AS POSSIBLE before making any decision that may affect your rights.

Family Law

Why do I need a prenuptial agreement?

Prenuptial agreements are recommended for the following reasons:

  • to protect your children from a prior marriage;
  • to protect a family business;
  • to protect your pre-marriage nest egg (home, pension plan, stock portfolio, or property with emotional value);
  • to protect inheritances and gifts you receive;
  • to avoid difficult disputes over property in case of death (such as family businesses, stock options, professional degrees, licenses and practices, pension plans, and copyrights);
  • to protect yourself from your partners' pre-marriage credit card debt and /or loans;
  • to protect yourself from a prior spouse seeking to get more property.

Does my spouse have to live in this state to file for a Divorce?

No, either you or your spouse must be a resident of Pennsylvania for at least six months to file for a divorce in Pennsylvania.

The Superior Court of New Jersey has jurisdiction over all matters of divorce so long as at least one party is an established resident of New Jersey for one year or more.

My spouse cheated on me. Do I automatically qualify for a divorce?

Both Pennsylvania and New Jersey are "no-fault" divorce jurisdictions, so neither party has to prove marital fault in order to obtain the divorce. As long as you and your spouse have been separated and your paperwork is correctly processed through the judicial system, you may obtain a divorce for any reason.

What if my spouse does not want a divorce?

You can obtain a divorce whether or not your spouse wants to be divorced, if you have been separated for one continuous year and the paperwork has been correctly processed.

How long will a divorce take?

Each state is different because there are waiting and cooling off periods. If you and your spouse can reach an agreement, it will help speed the process along. Otherwise, it could take a lengthy amount of time, up to and exceeding 2 years! Mutual consent no-fault divorce in Pennsylvania can be done in as little as 3 months, but as long as 6 months depending on whether you and your spouse were separated for 2 years at the time of filing. New Jersey recently passed legislation approving “irretrievable breakdown” for a period of at least six months for filing on no-fault grounds. No longer does a spouse have to wait 18 months after separation before filing for a no-fault divorce.

What is Marital property?

Marital property includes all property that was acquired during the marriage, regardless of whose name it is listed in. In addition, the increase in value of any pre-marital property during the marriage is marital property. Any item, including gifts, purchased with marital funds are marital property, regardless as to whether they are in the name of only one of the parties. Pensions and business interests that were developed by one spouse are considered marital property if they were acquired during the marriage. Marital property in Pennsylvania is defined as:

(a) General rule.-As used in this chapter, "marital property" means all property acquired by either party during the marriage, including the increase in value, prior to the date of final separation, of any non-marital property acquired pursuant to paragraphs (1) and (3), except:
(1) Property acquired prior to marriage or property acquired in exchange for property acquired prior to the marriage.
(3) Property acquired by gift, except between spouses, bequest, devise or descent.
23 Pa. C.S.A. § 3501(a).

Is my pension included in marital property? What about the pension after we separated?

Pensions are considered marital property subject to equitable distribution to the extent the pension was accumulated during the marriage. In Pennsylvania, however, recent amendments to the Divorce Code include certain aspects of a pension from date of separation until the date of final trial.

How is property distributed?

In an action for divorce or annulment, the court shall, upon request of either party, equitably divide, distribute or assign, in kind or otherwise, the marital property between the parties without regard to marital misconduct in such proportions and in such manner as the court deems just after considering all relevant factors. The relevant factors include:

1. The length of the marriage,
2. Any prior marriage of either party,
3. The age, health, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties,
4. The contribution by one party to the education, training or increased earning power of the other party,
5. The opportunity of each party for future acquisitions of capital assets and income,
6. The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits,
7. The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker,
8. The value of the property set apart to each party,
9. The standard of living of the parties established during the marriage,
10. The economic circumstances of each party, including Federal, State and local tax ramifications, at the time the division of property is to become effective, and
11. Whether the party will be serving as the custodian of any dependent minor children.

How is marital property divided?

After marital property is identified and evaluated, the court must consider eleven statutory criteria to determine an equitable distribution of marital property. Contrary to popular belief, the court does not start with a presumption of a 50%-50% distribution. The court may consider the parties' respective incomes, their ability to rebuild assets and income in the future, the value of their separate property, their custodial responsibilities, and other factors. Marital fault is not one of the criteria that the court may consider in equitable distribution. If the factors weigh in favor of one of the spouses, the court may award a greater share of the marital property to that spouse. It is not uncommon to see a 55%-45% division of marital property, a 60%-40% division, or even more extreme divisions of marital property.

What is Alimony?

Alimony is support money paid by a former spouse to the other spouse. It helps to meet the support needs of a party who is unable to provide for his or her own support. This is completely separate from child support. A spouse qualifies for alimony if he or she cannot meet expenses despite distribution of marital property because that person's income is insufficient. The amount and duration of alimony are in a Court's discretion.

Alimony can be changed, based upon the changed circumstances of the parties involved.

Are there different types of Alimony?

There are three types of alimony, including: Permanent alimony – a type of alimony awarded after divorce consisting of regular payments that may change in amount or end if the receiving party remarries. Alimony Pendente Lite (Alimony Pending Litigation) – a type of alimony awarded pending a divorce or separation consisting of payments that include enough money to afford the lawsuit and money to take care of needs until permanent alimony can be established

Does my or my spouse's remarriage affect Alimony?

If the payor gets married, it does not affect the amount of alimony that is being paid. However, if the recipient of the alimony gets married, the re-marriage terminates the alimony. In many states, cohabitation by the recipient ex-spouse causes alimony to cease

How is custody determined?

Custody is determined by what is in the best interest of the child. Custody can be in both the parents. However, if the matter goes to court or ADR, the following factors are considered before joint or sole custody is awarded:

  • Which parent is more likely to encourage, permit, and allow frequent and continuing contact with the other parent;
  • Whether either parent has engaged in any violent, criminally sexual, abusive, or harassing behavior;
  • The preference of the child, especially in pre-teens and teens.
  • Any other factor that affects the child's physical, intellectual, spiritual or emotional well-being.

How is child support calculated?

Child support in Pennsylvania is based on the Pennsylvania Child Support Guidelines. Each matter is case specific, so there is no one answer as to how much you will have to pay or will receive. Some of the variables include the parties' incomes or earning capacity, number of children, additional expenses (such as day care, summer camp, or private/parochial school), and the parties' custody arrangements.

The guidelines are not exact calculations. There are a number of factors that are used to create the calculation. A court is free to increase or decrease the amount of support as long as it gives reasons for the deviation.

Please see the following website for information regarding child support in Pennsylvania: PA Child Support

What is Paternity?

With the discovery of DNA, it is now possible to determine the paternity of a child with almost 100% accuracy. In almost every state, a court can Order a putative father to undergo DNA testing. This is usually ordered upon the filing of a Complaint for Support by the mother in the event that the father will not acknowledge paternity. Father can request a paternity test after acknowledging child, if he becomes aware of some facts which place him in doubt of being the father. Paternity testing is done by collecting DNA from the father, the mother, and the child.

What is Adoption?

Adoption is the process by which third parties can adopt a child and that child will be the child of the parties as if born to them. An impediment to adoption can be a biological father who challenges the biological mother’s right to place the child for adoption. In instances where there is a “familial” adoption, meaning, for instance, adoption of a child by a mother’s new husband of the child from a former relationship and/or marriage, there has to be a termination of the other parent's rights. In the event that the other parent will not voluntarily relinquish that right, an adopting parent has to file a Petition to Terminate Parental Rights and prove a number of things about that parent.

With regard to foster care, it is now possible in Pennsylvania for foster parents to file for adoption of a foster child, whereas in the past, their rights were very limited. The law in Pennsylvania has made a significant change to the benefit of foster parents and the children for whom they care.

What rights do Grandparents have?

It depends on the jurisdiction. Some jurisdictions have what is known commonly as a Grandparents Visitation Act. In Pennsylvania, the Grandparents Visitation Act provides that a grandparent has visitation rights only in the event that his or her child is deceased, separated or divorced. The Pennsylvania Supreme Court has approved the Grandparent Visitation Act and the U.S. Supreme court refused to accept an appeal of the issue

Can a grandparent ever get custody of a grandchild against a natural parent?

As always, it depends. However, in a situation where a grandparent has been the one that has raised a child and has served the child's best interests, for a period of time long enough so that the child can be considered to have been raised by that grandparent, that person is deemed to be "in loco parentis" or acting in the place of the parent. In Pennsylvania, a grandparent has standing by statute to seek custody of a grandchild.

How do I get an Order protecting me from an abusive spouse? What if my spouse has threatened to hurt me but has not yet done so?

The Protection from Abuse Act in Pennsylvania has been amended so that one doesn't have to wait to be abused to get Court Protection. If a spouse or live-in threatens the other so that the other spouse fears for his/her physical safety due to threats of harm, one can seek Court intervention. Of course, if a person living in the home physically harms another, including a child, one can immediately get a Temporary PFA Order and the Order is lodged with the local and state police.

A person can be ordered to stay away physically, by phone, and by email from the household and any place where the other person may be. A full hearing must take place with the accused having the right to defend himself, within 10 days of the Temporary Order. A final Order will remain in effect for a period not to exceed 18 months. Most Court personnel can help with filing the Original Complaint if the abuse or threats take place in "off hours" such as nights or weekends. However, one should contact a lawyer for the full hearing on the merits.