Family Law 101
Know the basics of Pennsylvania Family Law.
Child Custody.
There are two types of child custody in Pennsylvania:
(1) physical custody - where the child lives
(2) legal custody - who makes major decisions concerning the child (educational, medical, religious)
The court may choose to award sole, primary/partial, or shared custody to any party, but must consider the following sixteen factors in making its decision:
(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
(2) The present and past abuse committed by a party or member of the party's household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.
(2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).
(3) The parental duties performed by each party on behalf of the child.
(4) The need for stability and continuity in the child's education, family life and community life.
(5) The availability of extended family.
(6) The child's sibling relationships.
(7) The well-reasoned preference of the child, based on the child's maturity and judgment.
(8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.
(9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child's emotional needs.
(10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party's availability to care for the child or ability to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another.
(14) The history of drug or alcohol abuse of a party or member of a party's household.
(15) The mental and physical condition of a party or member of a party's household.
(16) Any other relevant factor.
Equitable Distribution.
Assets and debts obtained during the marriage are considered “marital” and must be equitably divided. There are some exceptions: gifts or inheritance given solely to one spouse are not considered marital property. However, any increase in the value of non-marital property is considered marital for equitable distribution purposes.
Division of these assets is not always 50-50. By law, the court must consider the following factors in determining how to divide the marital estate:
(1) The length of the marriage.
(2) Any prior marriage of either party.
(3) The age, health, station, 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 at the time the division of property is to become effective.
(10.1) The Federal, State and local tax ramifications associated with each asset to be divided, distributed or assigned, which ramifications need not be immediate and certain.
(10.2) The expense of sale, transfer or liquidation associated with a particular asset, which expense need not be immediate and certain.
(11) Whether the party will be serving as the custodian of any dependent minor children.
Support.
There are various forms of income sharing or “support” that may be awarded by the courts:
(1) child support (may be awarded to the parent who has primary physical custody or to the lesser earning parent if the parties have 50-50 physical custody)
(2) spousal support (may be awarded to the lesser earning spouse before a divorce is filed)
(3) alimony pendente lite (may be awarded to the lesser earning spouse once the divorce is filed and while the divorce is pending)
(4) alimony (may be awarded at the conclusion of the divorce through the Equitable Distribution process)
Child support, spousal support, and alimony pendente lite (APL) are all determined by guideline calculations pursuant to Pennsylvania law. The PA Department of Health and Human Services offers a “child support estimator” on its website, however, this estimate is not typically accurate. In calculating support, you must accurately calculate the net incomes of both parties by only deducting taxes, mandatory retirement, and union dues. You must also consider earning capacity issues and, in some instances, engage in discovery to determine earnings that are not easily identified.
As for alimony, this may be awarded through the Equitable Distribution process, but is only awarded as a “secondary remedy”. In addition to the Equitable Distribution factors, the court must consider the following factors in determining whether an award of alimony is appropriate:
(1) The relative earnings and earning capacities of the parties.
(4) The expectancies and inheritances of the parties.
(7) The extent to which the earning power, expenses or financial obligations of a party will be affected by reason of serving as the custodian of a minor child.
(9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.
(10) The relative assets and liabilities of the parties.
(11) The property brought to the marriage by either party.
(13) The relative needs of the parties.
(14) The marital misconduct of either of the parties during the marriage.
(16) Whether the party seeking alimony lacks sufficient property to provide for the party's reasonable needs.
(17) Whether the party seeking alimony is incapable of self-support through appropriate employment.
Protection from Abuse.
Physical and sexual abuse or the threat of either is against the law. Even if you choose not to bring criminal charges against your abuser, you and your children can still get protection through the court system.
In order to file for a Protection From Abuse Order:
(1) You must be an adult household member, or an adult guardian on behalf of a minor child; and
(2) You must have one of the following relationships with the abuser:
(a) related by marriage (spouse, in-laws, etc.); or
(b) related by bloodline (parent, children, cousins); or
(c) biological parents of a child; or
(d) current or past "intimate" partners. Intimate does not necessarily mean sexual (dating, etc.).
“Abuse” is legally defined as:
(1) causing or trying to cause physical harm, whether or not any weapon is involved;
(2) rape or sexual assault;
(3) physical or sexual abuse of minor children;
(4) putting someone in reasonable fear of immediate and serious physical harm;
(5) following someone around (stalking) or repeatedly committing other acts that cause the person reasonable fear of bodily injury; or
(6) interfering with a person's freedom of movement.
If the Court believes you are in danger of further abuse the Judge can order any or all of the following:
(1) order the abuse to stop;
(2) evict the abuser from the house;
(3) establish custody, partial custody, and visitation rights;
(4) order the abuser to stay away from you, your residence, your place of employment, or your school;
(5) order the abuser to stop harassing you or your children;
(6) order the abuser not to stalk you;
(7) order the abuser to relinquish weapons, ammunition, and any firearms;
(8) prohibit the abuser from acquiring or possessing any firearms ;
(9) order the abuser to relinquish any fire arm license;
(10) order the abuser to pay financial losses which you suffered as a result of the abuse;
(11) keep your address confidential;
(12) make other orders that will help stop the abuse.
The final order of protection can last up to 36 months.