Two-Year Separation – Divorce

Most parties pursuing divorce will choose to proceed with no-fault grounds for divorce. A no-fault divorce simply means there has been an irretrievable breakdown of the marriage. There are two different ways to establish an irretrievable breakdown of the marriage under the Divorce Code. First, both parties may consent to the divorce after 90 days from when the complaint was filed and served. This is referred to as a 90-day mutual consent divorce. Alternatively, if one party won’t consent, the other party can move forward after the parties have been “separated” for two years. This is referred to as a 2-year separation divorce.

Separation does not mean the parties have to live separately. Many parties still reside in the same home but are considered to be “separate” based on the definition provided by the Divorce Code. Section 3103 of the Divorce Code defines “Separate and apart” as follows: “Cessation of cohabitation, whether living in the same residence or not. In the event a complaint in divorce is filed and served, it shall be presumed that the parties commenced to live separate and apart not later than the date that the complaint was served.”

Accordingly, the date the divorce complaint is filed will generally be accepted as the date of separation regardless of whether the parties continue to live together or not. However, the date of separation can be an even earlier date. For example, the date one party does move out of the marital home is usually a clear indication the marriage is over, and hence, an acceptable date of separation. Alternatively, even if the parties continue to reside together, a date of separation can be established when one party makes it clear to the other party that the marriage is over by stating so clearly or even reducing it to writing. The party alleging 2-year separation will have to submit an affidavit certifying the date of separation. The other party has an opportunity to object and a hearing may be held if necessary to determine the appropriate date of separation. Accordingly, be sure that the other party is keenly aware of your intended separation, especially if you will continue to reside together and/or hold off on filing for divorce.

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Basics of Child Support

Child support in Pennsylvania is based on statewide guidelines established by the Pennsylvania Supreme Court. The guidelines are intended to ensure that similarly situated parties are treated similarly. Accordingly, all parties making $3000 per month with 3 kids would pay the same amount of support based on the guideline amounts. The guidelines are based on an “Income Shares Model.” Accordingly, the guideline amount will be based on the combined net monthly income of both parties.

The amount of support reflected in the guidelines is based on the average expenditures of children for food, housing, transportation and other necessary miscellaneous items. The guidelines make financial support of children a top priority. Accordingly, outside of the basic needs of the party providing support, the child’s needs in terms of support come first. Pennsylvania has established a self-support reserve based on the federal poverty guidelines. The current self-support reserve is $867 and a guideline amount of support that would leave a party with less than this sum will not be upheld. Instead, the award of support would be modified to leave the party with at least $867 per month.

In sum, parties should understand child support is a serious obligation. There is not much room for argument as far as what amount of support is appropriate. There is a presumption, albeit rebuttable, that the amount of support indicated by the guidelines is the appropriate amount. Further, Pennsylvania does maintain that the support of children is a top priority and is often unwillingly to change the support number based on the financial hardship it may inflict on the party owing support outside of the self-support reserve.

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Role of Gender in Custody

Many parents who are considering custody litigation still assume or inquire as to a gender preference in custody. It is true that moms used to be the preferred custodians for minor children over dads. During the early twentieth century the custody laws of nearly all the states endorsed this view as well. There was a shared misconception that moms would be the better parents based on their natural nurturing instincts. This was especially true of young children or children of “tender years.” In fact, a legal principle termed the “tender years doctrine” called for mothers to have custody of children until they were at least approaching their teenage years.

However, at this point, there are no remaining custody laws that include a presumption in favor of one parent over the other based solely on gender. The Supreme Court of the United States found that the tender years doctrine was a violation of the Fourteenth amendment of the Constitution, providing for equal protection for all, since it impermissibly discriminated against men based on their gender. The tender years doctrine was replaced in most states with an analysis based on the best interests of the child. Pennsylvania is among the states that uses a best interest analysis and the statute discussing the factors to be considered under a best interests analysis is 23 Pa. C.S. 5328. So whether you are a mom or dad, your opportunity to receive custody is the same. It is important to become familiar with the relevant factors in a custody decision and determine which factors weigh in your favor in order to present a winning argument for custody.

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