WHEN IS A GOOD TIME TO FILE FOR DIVORCE?
As family law attorneys, we do find that certain times of the year are busier than others. However, legally, there is not one time that is better than any other to initiate divorce filings. The decision to proceed with a divorce is obviously not solely based on the legal issues but is more of an emotional choice. However, in order to help make that decision you should be aware of the legal issues that you may confront. You should know your rights, entitlement and obligations. Typically, there are three topics: Custody, Support and Divorce.
DIVORCE– There is a lot of predictability in divorce. You may not like what you hear or you may not accept it but the benefit of meeting with an experienced attorney is to offer to you a roadmap of how a divorce will proceed. If you and your spouse are able to discuss the economic issues, you may save yourself thousands of dollars in legal fees.
A Divorce process typically begins is with the filing of a Complaint. It does not matter who files first. This is a formal document filed with the Court advising that you are proceeding with a divorce. The next thing to occur is the grounds or legal basis for the divorce. This can occur in three different ways. The first is by Consent. Ninety days after service of the Divorce Complaint you can each sign a consent agreeing to move the divorce along. The second is one year of separation. The third are fault grounds. This is the only time that fault is relevant in a divorce action. It does not mean that you get more or less of the marital estate - it is just the basis for divorce. This is a miserable way to proceed and not one that I would recommend.
Once the grounds have been established, you can move to court to resolve the economic issues. This is the division of all assets and liabilities accumulated during the marriage. In the ideal situation, you and your spouse can come to an agreement with the assistance of counsel. Therefore, there would not be any reason to proceed to court. If however, you and your spouse cannot agree, the court system is there for you. It is at this time that alimony is also resolved as to amount and length of time. For some reason many people think that alimony does not exist. That is not correct. It is alive and kicking in Pennsylvania. Again, this depends on many things the most important of which is the income of the parties and the length of the marriage.
Once these issues are resolved you will be divorced. You will not be divorced until the economic issues of your marriage are resolved either by agreement or court order.
CUSTODY – Just like divorce, there is not one time that is better than any other to file for custody. If you and the other parent can mutually agree on a schedule, you never even have to go to court. I do strongly suggest that any agreement that the two of you have made be written up by an attorney and made into an Order of Court. The reason for this is if the two of you do not agree on something in the future, you have this written document to fall back on.
There are two components to custody. There is legal custody which is the obligation to consult one other for all major medical, educational and religious decisions. This is usually shared. Each parent has a right to know what is going on with their child. Then there is physical custody – who has actual possession of the child. The parent who has more overnights in a calendar year has primary physical custody and the parent who has less of the overnights has partial physical custody. The parent with primary physical custody does not have any more rights than the other parent, it only means that you have more of the overnights. Another option is shared physical custody where the overnights the child spends with each parent are equal.
SUPPORT - If one parent does not pay child support to the other parent, it is the right time to file for child support. If you and your spouse are living separate and apart and one spouse earns more than the other, the income inferior spouse may be entitled to spousal support.
As to child support, the parent who has partial physical custody pays child support to the parent who has primary physical custody. Pennsylvania and New Jersey have in place Child Support Guidelines which determine how much support one parent pays to the other. Even with a shared physical custody arrangement, if one parent earns more than the other, there still may be a child support obligation. This issue also includes contribution for child care, health insurance and extra-curricular activities.
As to spousal support, the determination is based on many factors, but the main points are the length of the marriage and the income of the parties.
I recognize that I may have raised more questions than answers for you. However, this is just an outline of the issues that you may confront. That is why I suggest a consultation with an experienced family law attorney. At Liebmann Family Law we offer a free initial consultation. We do this because making the decision to proceed and choosing an attorney is not easy. You must find someone who knows the law and someone with whom you feel comfortable will protect your interest. With the legal answers, you are better equipped to make the emotional decision whether to proceed or not.
Mindy Snyder is an attorney with Liebmann Family Law in Newtown. Each of the attorneys in the office has over 30 years of experience handling these issues. We appear in Bucks and the surrounding counties, including New Jersey. Please contact our office to schedule the initial free consultation to make this decision easier. (215)860-8200.