When most people think of a divorce, it comes with a very negative connotation. The thought of broken promises, deceit and lies are some of the first things that come to mind. While these are very real considerations for most divorcing couples, they are in fact only distractions when engaged in the tedious process of dissolving a marriage. It is often a very difficult concept, but the best way to maintain your sanity as well as your assets, finances and personal desires during a divorce is to treat it as a “business” action rather than a personal one.
The first thing to do when contemplating a divorce is to review and understand the laws in your state (where you will be filing for divorce). While the laws and procedures vary from state to state, many states, such as Pennsylvania (which we will examine for the purposes of this article) offer a “no fault divorce” option. “No fault divorce” essentially means that a couple is getting divorced for any reason not necessarily at the fault of the other party. There is no need to prove a “reason” for seeking a divorce (such as infidelity). This does not mean there was not a specific reason, but one need not be proven in order to seek nor obtain a divorce from the courts.
Under §3301 of the Pennsylvania Divorce Code, there are two options for a no fault divorce:
§3301(c) is used when both parties agree to a divorce and both are available and willing to sign legal documents in the same regard. Some refer to this type of divorce as a “mutual consent” divorce. We will look at the process under this statute as it is by far the more common of the two options.
Conversely, §3301(d) of the Pennsylvania Divorce Code can be used when the parties have already lived apart and been separated for at least the last two years. While this type is far less common, it does not require mutual consent. It is important to understand that when filing under this statute, the party filing the divorce must be able to prove that the parties have lived apart and separate for at least the past consecutive two years.
As a divorce is a legal proceeding, there is a Plaintiff and a Defendant. The Plaintiff is the party filing for the divorce. The Defendant is obviously the opposing party. Either party can be represented by an attorney (which is always the best idea) or represent themselves. But if representing themselves, they must understand and study not only the divorce laws but also the State and local Rules of Civil Procedure in the County where the divorce will be filed.
Prior to filing a divorce, it is important to begin to weigh all considerations and options available to you. Your life will be drastically different during and after the divorce than it is currently. This is not necessarily a bad thing, but it is always good practice to be prepared for what is to come. Do not be the party that drains the bank accounts, takes and hides all assets and destroys items in fits of jealous rage. None of those actions will present well for you in front of the judge. By the same token, you do not want to be the party who has to experience the effects of the opposing party doing the same to you.
In a marriage, accounts and assets are (almost always) owned jointly. You are typically entitled to 50% of the martial finances and assets. In 2013, I was working on a divorce proceeding where the Plaintiff wife went to the bank and withdrew all of the marital funds. She maintained a papertrail showing the account balance prior to withdrawl. She had opted to take the funds in the form of two certified cashier’s checks of equal amounts: 1 made payable to her individually and the other made payable to the Defendant Husband. This was acceptable as fair and equal because they werre both entitled to 50% of each asset and it was shown that the 50% share had been achieved in that unconventional manner.
It is also good practice to compile a list of any and all receipts, financial documents, licenses, correspondences and any and all other documents you feel may be even slightly relevant to your divorce. Posts from social media sites, emails, text messages and the like can often be useful in certain disputes that will arise at some point during the proceedings. I was working on another case last year where the husband was verbally agressive and harassing the wife who had filed for divorce. The majority of his aggressions and harassment came in the form of text messages. The Wife saved the text messages via a screenshot photograph and was able to print those photos and presented them as evidence at a hearing for Special Relief. While there were a number of factors at play, the photographed text messages were a large part of her successful plea.
Once you have gathered your information, the first official step once you are actually prepared to file for the divorce is to file a Complaint for Divorce (and any accompanying required documents, such as a Notice to Defend and Claim Rights). The Complaint is the document in which you give the courts relevant information about you and your spouse and tell the Court you are seeking a divorce. A copy of this (and all legal documents), you must also provide to the opposing party (or their attorney if they retain one). Always check with the local rules of your State Court to ensure you follow the proper procedure.
Once you file the Complaint with the court and pay the required filing fee, you will have a set time limit to “serve” the Complaint to the Defendant (Usually about 30 days). One method for doing this is by using Certified mail, return receipt requested; restricted delivery (provided of course that your local Rules allow for this method of service). Once this is complete you must file a Certificate of Service (“proof” of serving the papers to the other party) with the Court.
Next, you will usually be required to wait (at least) 90 days and then you can file a Waiver of Notice and Affidavit of Consent with the Court. These documents are required by both parties. They essentially inform the Court that you both consent to a divorce being granted and want the same done. However, it is important to note that during these 90 days, you will likely face battles in a courtroom (or similar) setting, especially if there are assets (such as real property) and/or children involved as it is highly unlikely you will both be able to agree on how to divide all assets and even more unlikely, if children are involved that you will agree on custody and other interests in the care, custody and support of children. Custody disputes are an inevitable part of divorce but are essentially a separate issue from the divorce itself. Thus, the timeline usually takes longer than simply “waiting” for 90 days to lapse. That time will lapse by virtue of the argued proceedings.
Bearing in mind the inevitable; be prepared for these battles. Make a list of everything you want. In regards to assets, ensure you have a list of assets you are willing to give up in return for assets you would like to keep. If you can show a fair comparison in value and use for things you are willing to concede to the opposing party (especially if it is something they could use and would likely want), you will be able to better present your arguments to the Court.
When it comes to child custody and support, it usually gets a bit messier. Be clear about what you want and keep in mind the Courts usually prefer to err on the side of equal and partial split custody. If you have valid concerns about the safety of your children around your former partner, make a clear case and be able to prove your concerns are valid. This is where those social media posts and text messages or other correspondence issues come into play. The time to be “kind” to your former partner ended when you filed the Complaint. The only interests you need be concerned with are those of yourself and your children. Not your former partners. You have no obligation to them. This is a big part of looking at your divorce as more of a business action as opposed to a personal one. Ultimately, after hearing all concerns and arguments, a child custody agreement will be drafted which will dictate the current and future requirements of any children involved.
It is also important during this time that if you intend to seek alimony, you file for the same before the divorce is finalized. Otherwise you will have no basis to claim it at a later point.
Once all the arguments have been heard, at least 90 days have passed, and all relevant documents are signed, there are only 2 simple steps left. First you must file a Praecipe to Transmit the Record and file the Final Divorce Decree. When property or major assets are involved, a Property Settlement Agreement (PSA), sometimes referred to as a Marital Settlement Agreement (MSA) will accompany a divorce decree and is incorporated into the same. The PSA (or MSA) is the Agreement that dictates how assets and finances have been divided and is an Order of the Court with the decree. It is best to have this drafted by an attorney that is familiar with the laws and is looking out for your interests. Ultimately, once the decree is filed and granted, a copy of it will be sent to you and your ex-spouse. Once you have that, congratulations… you are officially divorced. The PSA will continue to dictate the division of assets and the Child Custody Agreement will continue to dictate child custody issues. Safeguard all of these documents in a safe place and refer to them as doctrine. They are official Orders of Court.
Post-divorce life varies from person to person. In a best case scenario, if there are no children involved, you are usually lucky enough to enjoy the luxury of never having to deal with your ex again. However, if children are involved, you will usually have to continue to deal with your ex to some extent. For your own sanity and for the best interests of your children, it is best to keep all dealings with your ex strictly and exclusively about the children. If your ex tries to converse about anything aside from the children, it is good practice to divert any such subject. Keep in mind that even if at times your ex seems to be cooperative and in agreement with you, it likely will not remain that way. Even worse, it could actually be used against you if he/she mounts a claim for a custody modification against you. Maintain your strong defenses if you ever have to revisit court for custody modification requests (or any other reason for that matter). Remember that you sought a divorce for a reason. Do not lose sight of that fact, move forward with your life and enjoy it to the fullest!
Pennsylvania Divorce Code §3301
Pennsylvania Rules of Civil Procedure (PaRCP)
Disclaimer: The above article is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.