When clients first meet with us regarding a divorce matter, one of our primary goals is to explain the steps involved in obtaining a divorce. While there are several different paths a divorce can take (and some are certainly more complicated than others), there are certain basic steps that each case follows. These steps may not always occur in order; however, most cases generally follow the path set forth below.
Filing of a Divorce Complaint
In Pennsylvania, the Divorce Complaint is the first legal step in a divorce matter. The Divorce Complaint is the first document filed with the Court. The Complaint is a fairly standard document which will typically include various “Counts.” Each “Count” is a request for a certain type of a relief. For example, a typical Divorce Complaint will often include Counts for no-fault divorce due to the irretrievable breakdown of the marriage, equitable distribution (division of property), support for the dependent spouse (alimony, alimony pendente lite, and/or spousal support), custody of the children, child support, and counsel fees.
Service of the Divorce Complaint
Once the Divorce Complaint has been filed with the court, it must be “served” on the opposing party. Sometimes, service is made using a process server or sheriff, but more typically, service is made via certified mail. Many clients are apprehensive about being served or are unsure how to serve the other party; however, in most cases we are able to accomplish service fairly quickly and inexpensively. Occasionally, one party will resist being served and we may have to use other means of service, such as hiring a process server, to serve the other party.
Discovery / Information Gathering
An important step in resolving any divorce matter is gathering the information needed to identify and value the assets. In some cases, this may be very simple, if the parties are both fairly knowledgeable about the marital assets and are cooperative in exchanging the relevant information with one another. In other cases, such as where one party believes the other party may be hiding assets or income, formal discovery may be required to identify the various marital assets and to obtain information about their values, or to determine the income of the other party for purposes of determining alimony / support.
Identification and Valuation of Assets
The purpose of the information-gathering stage is to get the information needed to draft a list of the marital assets and to determine the marital value of each asset. For some assets, such as a bank account, this may be accomplished very easily simply by looking at bank statements. However, for other assets, such as a business or real estate, it may be necessary to hire an expert to help determine the marital value of the asset. Additionally, in some cases, it may be necessary to hire a forensic accountant to help trace assets and to ensure that all assets are accounted for and properly valued.
Determination of Income / Earning Capacity of Each Party
In resolving a divorce matter, it is important to understand the incomes of each party and to ensure that all income has been considered, including bonuses, executive compensation such as stock options, and “perqs” such as employer paid cell phone or car benefits. Where one party is self-employed or has complex income, it may be necessary to hire a forensic accountant to assist. If either party is unemployed or underemployed, it may be necessary to consider the “earning capacity” of each party by looking at his or her educational background and employment history, rather than using actual income.
Resolving Other Issues (i.e. Custody and Child Support)
There are certain issues, such as custody and child support, which often arise in the context of a divorce, but are technically considered separate issues. It is important to understand that while these issues are factually intertwined with your divorce matter, they are separate issues from a legal perspective. This means that these matters can be resolved separately from the divorce matter. For example, you may have a fairly simple divorce case but an extremely contentious custody matter. In that situation, you can move forward to resolve your divorce matter and obtain a final divorce decree, even though the custody matter is not yet resolved.
Negotiations (Or Alternative Dispute Resolution)
Once you have identified and valued the assets and determined the income / earning capacity of each party, the next step is to try to resolve the matter through negotiation. Many divorce cases can be resolved without ever appearing in court. However, sometimes an agreement is not possible, often for the following reasons:
(a) The parties cannot agree on whether a specific asset(s) or
debt is marital;
(b) The parties cannot agree on the marital value of asset(s) or
(c) The parties cannot agree on how the marital assets and debts
should be divided; and/or
(d) The parties cannot agree on whether alimony should be paid,
or the amount or term of alimony.
In cases where a negotiated resolution of the divorce matter cannot be reached, then the parties must find a different way to reach a resolution. One option is to use alternative dispute resolution, such as arbitration, to resolve the outstanding issues. Arbitration is a process in which the parties hire a decision-maker to hear their issues and render a decision. Arbitration is typically binding, with no option for appeal, so it is not be the right option for every case, but it does offer an efficient means of resolving disputes for some cases. If the parties cannot reach a resolution of their financial matters, then court intervention may be needed.
Establishing “Grounds for a Divorce”
To finalize a divorce in Pennsylvania, you will need to establish “grounds” for a divorce. The vast majority of divorces in Pennsylvania are based on no-fault grounds, meaning neither party has to prove that the other party was a fault in order to obtain a divorce. It is important to understand that obtaining “grounds” for a divorce merely means that you have the state’s permission to dissolve your marriage – it does not affect how property is divided or how alimony is determined. Accordingly, there is typically no financial advantage in seeking a fault divorce, rather than a no-fault divorce, because it will not affect the financial outcome of the case.
Property Settlement Agreement or Equitable Distribution Hearing
If you reach a negotiated resolution to your divorce matter, then a Property Settlement Agreement will be drafted. The Property Settlement Agreement sets forth the terms of the settlement. It is important to have a well-drafted Property Settlement Agreement, as the Agreement represents a final resolution of your financial matters. If you are asked to sign a Property Settlement Agreement, it is advisable to have it reviewed by counsel before signing, to ensure that the Agreement is accurate and fair.
If you are unable to reach a negotiated resolution of your divorce matter, then the Court will hold a hearing and render a decision. Typically, the Court will first try to assist the parties in reaching a negotiated resolution; however, if this is impossible, the Court will hold a hearing and decide the outstanding issues.
Entry of Divorce Decree
At the conclusion of the case, after all financial matters have been resolved, the Court will issue a “Divorce Decree.” This is the final Court Order which legally dissolves the marriage. A divorce is final upon the entry of the divorce decree.