Frequently Asked Questions

Below are some of the most common questions that clients ask me. Answers are based upon Pennsylvania family law. If you have a question that you think should be added to FAQ, please email it to me at phyllis@bookspanlaw.com

  1. What if I don’t want a divorce?
  2. Is there legal separation in Pennsylvania?
  3. Can I move out pending my divorce?
  4. Who should get a pre-nuptial agreement?
  5. Am I entitled to spousal support pending my divorce?
  6. Does it matter that my spouse cheated on me?
  7. Are there protections for non-biological parents in Pennsylvania?
  8. Can the court require counseling?
  9. Who pays the attorney’s fees?
  10. How can I help my children?
  11. How long will my divorce take?
  12. Does fault make a difference?
  13. What is equitable distribution?
  14. Do/will I have to pay alimony?
  15. What is the difference between legal custody and physical custody?
  16. How does the Court determine custody?
  17. How is child support determined?
  18. Can my spouse and I use the same attorney?
  19. What is divorce mediation?
  20. Does he/she have to continue to pay my health insurance?
  21. How much will my divorce cost me?
  22. Why is there a fee for the initial consultation?

What if I don’t want a divorce?

You do not have to consent to a divorce. Pennsylvania has a one year waiting period for divorce. After one year, however, a party who does not consent may be forced into proceedings which will result in a non-consensual divorce.

Is there legal separation in Pennsylvania?

No, Pennsylvania does not recognize the concept of legal separation; however, the date of your separation is significant for determining the division of your marital assets, and it is important for establishing an agreed upon date. There are different factors that can determine date of separation, only one of them is the date that a party physically moves out of the marital home.

Can I move out pending my divorce?

Nothing prevents you from moving out; however, there are many factors that must be considered. We have written a blog entry on this. Click here to read a more complete discussion of this question.

Who should get a pre-nuptial agreement?

We think it is a good idea for most people to consider a pre-nuptial agreement. The process that goes into thinking about the things that could be in your pre-nup is important; and we believe all couples could benefit from talking about things such as; how they want to make decisions about finances, lifestyle, children, home management, division of assets should a marriage not work, etc. before getting married. The investment early could save much aggravation and cost later. Click here for more on Pre-nups

Am I entitled to spousal support pending my divorce?

It depends upon your financial status. In Pennsylvania spousal support is based upon a formula that takes into consideration the earnings of each party. If one party is not working and is able bodied she/he may be attributed an earning capacity.

Does it matter that my spouse cheated on me?

As we said above, Pennsylvania is a no fault divorce state. Courts don’t pay much attention to adultery in most instances. For more on this topic read our blog. Click here.

Are there protections for non-biological parents in Pennsylvania?

Yes. Pennsylvania has Second Parent Adoption, which allows any unmarried heterosexual, gay, lesbian, bi-sexual or trans-gendered partner who is not the biological parent to adopt their partner’s minor child. For more on this topic read about a recent case Click here.

Can the court require counseling?

Yes, in certain cases, if either party requests it, the court can order up to 3 counseling sessions.

Who pays the attorney’s fees?

You can get help with your attorney’s fees either through a award of spousal support, or alimony pendent lite, or through an interim distribution of funds pending the divorce. At the end of the case the court has the discretion to divide costs and expenses equitably between the parties, to directly the parties each to pay their own costs and expenses, or to order some other form of equitable relief. Attorneys fees also may be awarded against one party as a sanction if the party is being non-compliant or vexatious with a matter.

How can I help my children?

You and your spouse are getting divorced- your children are not. Keep them out of your divorce. Reassure them that they are not the problem. Even when you are not feeling loved, remind your children how much you love them. Make special time for your children. Take care of yourself, and by doing this you will take care of your children. Get help if you need it.

How long will my divorce take?

The answer depends upon many factors. In Pennsylvania, in an uncontested, no fault case one can be divorced as quickly as 90 days. This, however, is rare. Length of time from filing of papers to final divorce depends upon the extent and type of assets to be distributed, cooperation between the parties, court calendars, and sometimes the attorney you choose. Mediation also may expedite the process.

Does fault make a difference?

Although fault still remains a ground for divorce in Pennsylvania, one need not plead fault in order to be divorced. Wrongs or fault of one party usually has no bearing on how marital assets will be divided. It might, however, be considered in determining alimony.

What is equitable distribution?

Equitable distribution is the means by which property acquired during marriage, or property that becomes marital property is fairly divided between the parties. Equitable distribution does not mean equal or 50/50 distribution, since in some cases equity may favor that a larger percentage be granted to one spouse to even out any inequities.

Do/will I have to pay alimony?

In Pennsylvania, alimony is not automatic. Courts will look to a number of factors to determine whether alimony is appropriate. Among those factors are:

  • Actual need and ability to pay;
  • Duration of the marriage;
  • Age, physical and emotional health of the parties;
  • The standard of living established during the marriage;
  • Earning capacity, educational level, vocational skills and employability of the parties

What is the difference between legal custody and physical custody?

Legal custody determines who is responsible for critical decisions about the children, such as, medical decisions, educational and religious choices. Unless one parent is seriously impaired, legal custody almost always is joint.

Physical custody is the actual residential placement of the child(ren). Physical custody arrangements vary based upon the decisions of the parents, ages , desires and needs of the children.

How does the Court determine custody?

It is preferable not to let the court determine custody, but for the parents, who know their children best, to work out custody. In the event parties cannot agree on custody, a court will hold a hearing to determine what is in the best interests of the child(ren). The court may hear testimony from the parents, experts, review and consider any parenting/custody evaluations performed, and, if appropriate, hear from the child.

Custody hearings usually are unpleasant and costly.

How is child support determined?

Child support is determined using a formula found in the Pennsylvania Child Support Guidelines. The Guidelines take into consideration the earnings and expenses of each party, the number of children eligible for support and some other factors, and a monetary award is determined. Deviations from the Guidelines can be negotiated. Modifications from child support orders also are available when there is a substantial change in circumstances of one or both parties. Visit the Child Support Guidelines

Can my spouse and I use the same attorney?

This is NEVER advised. Even if you think you have a completely amicable divorce, each of you should have separate counsel to advise you of your rights and responsibilities. In a mediation process, you may have the same mediator, but the mediator should advise each of you to have individual attorneys review any agreements reached before signing, and before presenting your agreement to the court.

What is divorce mediation?

Mediation is an alternative to the traditional litigation process… you may have heard the slogan Meditate don’t Litigate. In Mediation, a neutral third party (oftentimes an attorney ) will help the parties resolve the differences themselves, and work toward a final agreement. Mediation usually is a less costly alternative to traditional representation, and is most effective especially in custody disputes. For more on Mediation visit our Mediation page.

Does he/she have to continue to pay my health insurance?

If one party has health insurance and the other is covered only through the spouse’s insurance, maintaining health insurance coverage through the divorce proceeding is something that your attorney should discuss with you at your first meeting.

How much will my divorce cost me?

Total cost, just as length of time, is hard to predict. Cost is dependent upon factors such as the nature and complexity of the assets, contested or un-contested custody, complexity of legal issues, and cooperation of the parties. I require a retainer to begin work on your case. That retainer reflects the initial evaluation of complexity of your case. When , and if the retainer is used up, you are asked to replenish it. Detailed bills are provided monthly .

Why is there a fee for the initial consultation?

The consultation is a valuable service. Your initial consultation is a time for you to tell us about your case, and for you to ask questions. We use this time learn about your matter, and provide a plan for you. We answer your questions, and help you decide what your next steps are.