THE FOLLOWING LEGAL STUDY ARTICLE POSTING IS INTENDED TO SUPPORT AWARENESS AND UNDERSTANDING. IT IS ONLY A PRELIMINARY LEVEL LEGAL STUDY ARTICLE AND IT IS NOT LEGAL ADVICE. IF THE READER SEEKS LEGAL ADVICE CONCERNING HIS OR HER PARTICULAR SITUATION, HE OR SHE SHOULD SEEK OUT AN ATTORNEY IN A LAWYER CLIENT RELATIONSHIP.
Although Pennsylvania Courts Allow A Spouse To Divorce His Or Her Spouse Based On The “Irretrievable Breakdown” Of The Marriage, A Wiser Remedy May Be a Comprehensive Intra-Marital Separation Agreement For Up To A One Year Term.
Such An Agreement Can Help The Spouses To : A. Encourage and Effectuate The Resolution And Settlement Of Their Differences ; B. Give Primary Consideration To The Welfare Of The Marriage Rather Than The Vindication Of Private Rights Or The Punishment Of Matrimonial Wrongs ; C. Mitigate Harm To The Spouses Caused By The Dissolution Of Marital Assets ; D. Seek The Causes Rather Than The Symptoms Of The Marital Disintegration ; E. Cooperate With And Utilize The Resources Available To Deal With Their Marital Problems F. Effectuate Economic Justice Between Them According To The Actual Need And Ability To Pay Of The Parties And G. Insure A Fair And Just Determination And Settlement Of Their Property Rights .
A. The Family is the Basic Unit in Society and the Protection and Preservation of the Family is of Paramount Public Concern. Therefore, it is the Policy of the Commonwealth of Pennsylvania under The Pennsylvania Divorce Code to : a. Encourage and Effect the Reconciliation and Settlement of Differences Between Spouses; b. Give Primary Consideration to the Welfare of the Marriage Rather than the Vindication of Private Rights or the Punishment of Matrimonial Wrongs ; c. Mitigate the Harm to the Spouses Caused by the Legal Dissolution of the Marriage; d. Seek Causes Rather Than Symptoms of Marital Disintegration ; e. Cooperate With and Utilize the Resources Available to Deal with Marital Problems; f. Effectuate Economic Justice Between Parties Who are Divorced or Separated According to the Actual Need and Ability to Pay of the Parties and g. Insure a Fair and Just Determination and Settlement of Their Property Rights.
See 23 Pa. C.S. § 3102. Legislative findings and intent.
(a) Policy.–The family is the basic unit in society and the protection and preservation of the family is of paramount public concern. Therefore, it is the policy of the Commonwealth to:
(2) Encourage and effect reconciliation and settlement of differences between spouses, …
(3) Give primary consideration to the welfare of the family rather than the vindication of private rights or the punishment of matrimonial wrongs.
(4) Mitigate the harm to the spouses …caused by the legal dissolution of the marriage.
(5) Seek causes rather than symptoms of family disintegration and cooperate with and utilize the resources available to deal with family problems.
(6) Effectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to the actual need and ability to pay of the parties and insure a fair and just determination and settlement of their property rights.
B. An Intra-Marital Agreement Between Spouses Can Regard All Matters Within the Jurisdiction of the Court and a Party To It May Utilize a Remedy or Sanction Set Forth in the Pennsylvania Divorce Code to Enforce the Agreement to the Same Extent as Though the Agreement Had Been An Order of the Court .
See 23 Pa. C.S. § 3105. Effect of agreement between parties.
(a) A party to an agreement regarding matters within the jurisdiction of the court under this part, whether or not the agreement has been merged or incorporated into the decree, may utilize a remedy or sanction set forth in this part to enforce the agreement to the same extent as though the agreement had been an order of the court except as provided to the contrary in the agreement.
See 23 Pa. C. S. § 3502. Equitable division of marital property
(e) Powers of the court.–If, at any time, a party has failed to comply with an order of equitable distribution, as provided for in this chapter or with the terms of an agreement as entered into between the parties, after hearing, the court may, in addition to any other remedy available under this part, in order to effect compliance with its order:
(1) enter judgment;
(2) authorize the taking and seizure of the goods and chattels and collection of the rents and profits of the real and personal, tangible and intangible property of the party;
(3) award interest on unpaid installments;
(4) order and direct the transfer or sale of any property required in order to comply with the court’s order;
(5) require security to insure future payments in compliance with the court’s order;
(6) issue attachment proceedings, directed to the sheriff or other proper officer of the county, directing that the person named as having failed to comply with the court order be brought before the court, at such time as the court may direct. If the court finds, after hearing, that the person willfully failed to comply with the court order, it may deem the person in civil contempt of court and, in its discretion, make an appropriate order, including, but not limited to, commitment of the person to the county jail for a period not to exceed six months;
(7) award counsel fees and costs;
(8) attach wages; or
(9) find the party in contempt.
(f) Partial distribution.–The court, upon the request of either party, may at any stage of the proceedings enter an order providing for an interim partial distribution or assignment of marital property.
C. When the Cause of a Divorce Action is Based on an Alleged Irretrievable Breakdown of the Marriage, the Court will Require the Filing of an Affidavit Alleging that the Parties Have Lived Separate and Apart for a Period of One Year and That the Marriage is Irretrievably Broken . In Addition, the Non-Filing Spouse May Request and the Court May Order Spousal Attendance At Up to a Maximum of Three Counseling Sessions.
See 23 Pa. C. S. § 3301. Grounds for divorce.
(d) Irretrievable breakdown.–
(1) The court may grant a divorce where a complaint has been filed alleging that the marriage is irretrievably broken and an affidavit has been filed alleging that the parties have lived separate and apart for a period of at least one year and that the marriage is irretrievably broken and the defendant either:
(i) Does not deny the allegations set forth in the affidavit.
(ii) Denies one or more of the allegations set forth in the affidavit but, after notice and hearing, the court determines that the parties have lived separate and apart for a period of at least one year and that the marriage is irretrievably broken.
(2) If a hearing has been held pursuant to paragraph (1)(ii) and the court determines that there is a reasonable prospect of reconciliation, then the court shall continue the matter for a period not less than 90 days nor more than 120 days unless the parties agree to a period in excess of 120 days. During this period, the court shall require counseling as provided in section 3302 (relating to counseling). If the parties have not reconciled at the expiration of the time period and one party states under oath that the marriage is irretrievably broken, the court shall determine whether the marriage is irretrievably broken. If the court determines that the marriage is irretrievably broken, the court shall grant the divorce. Otherwise, the court shall deny the divorce.
See 23 Pa. C. S. § 3103. Definitions
“Irretrievable breakdown.” Estrangement due to marital difficulties with no reasonable prospect of reconciliation
“Separate and apart.” 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
See 23 Pa.C. S. § 3302. Counseling.
(c) Irretrievable breakdown.–Whenever the court orders a continuation period as provided for irretrievable breakdown in section 3301(d)(2), the court shall require up to a maximum of three counseling sessions within the time period where either of the parties requests it …
(f) Report.–Where the court requires counseling, a report shall be made by the qualified professional stating that the parties did or did not attend.
D. In the Absence of a Specific Provision to the Contrary in the Intra -Marital Agreement, a Provision Regarding the Disposition of Existing Property Rights and Interests Between the Parties Shall Not Be Subject to Modification By the Court.
See 23 Pa. C.S. § 3105. Effect of agreement between parties.
(c) Certain provisions not subject to modification.–In the absence of a specific provision to the contrary appearing in the agreement, a provision regarding the disposition of existing property rights and interests between the parties, alimony, alimony pendente lite, counsel fees or expenses shall not be subject to modification by the court.
E. An Intra-Marital Agreement Can Exclude Property From Qualifying as Marital Property and It Can Comprehensively Inventory, Detail and Explain the Equitable Division of Marital Property Between Spouses in Such Percentages and Manner as the Court Would Deem Just After Considering All Relevant Factors.
See 23 Pa. C. S. § 3501. Definitions.
(a) General rule.–….. marital property does not include:
(2) Property excluded by valid agreement of the parties entered into before, during or after the marriage.
See 23 Pa. C. S. § 3502. Equitable division of marital property.
(a) General rule.–Upon the request of either party in an action for divorce or annulment, the court shall equitably divide, distribute or assign, in kind or otherwise, the marital property between the parties without regard to marital misconduct in such percentages and in such manner as the court deems just after considering all relevant factors. The court may consider each marital asset or group of assets independently and apply a different percentage to each marital asset or group of assets. Factors which are relevant to the equitable division of marital property include the following:
(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
(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.
(c) Family home.–The court may award, during the pendency of the action or otherwise, to one or both of the parties the right to reside in the marital residence.
(d) Life insurance.–The court may direct the continued maintenance and beneficiary designations of existing policies insuring the life or health of either party which were originally purchased during the marriage and owned by or within the effective control of either party. Where it is necessary to protect the interests of a party, the court may also direct the purchase of, and beneficiary designations on, a policy insuring the life or health of either party.
See 23 Pa. C. S. § 3505. Disposition of property to defeat obligations.
(a) Preliminary relief.–Where it appears to the court that a party is about to leave the jurisdiction of the court or is about to remove property of that party from the jurisdiction of the court or is about to dispose of, alienate or encumber property in order to defeat equitable distribution, alimony pendente lite, alimony, child and spousal support or a similar award, an injunction may issue to prevent the removal or disposition and the property may be attached as prescribed by general rules. The court may also issue a writ of ne exeat to preclude the removal.
(b) Inventory of property.–Both parties shall submit to the court an inventory and appraisement, which shall contain all of the following:
(1) A list of the property owned or possessed by either or both of them as of:
(i) the date of separation; and
(ii) thirty days prior to the date of hearing on equitable distribution.
(2) A list of the value of the property owned or possessed by either or both of them as of:
(i) the date of acquisition;
(ii) the date of separation; and
(iii) thirty days prior to the date of hearing on equitable distribution.
(3) A list of the liabilities of either or both of them as of 30 days prior to the date of hearing on equitable distribution, whether or not the liabilities are related to the property set forth in the inventory and appraisement.
(e) Encumbrance or disposition to third parties.–An encumbrance or disposition of marital property to third persons who paid wholly inadequate consideration for the property may be deemed fraudulent and declared void.
See 23 Pa. C. S. § 3506. Statement of reasons for distribution.
In an order made under this chapter for the distribution of property, the court shall set forth the percentage of distribution for each marital asset or group of assets and the reason for the distribution ordered.
See 23 Pa. C. S. 4104. Right of married person to separate earnings.
Except as otherwise provided in this title, the separate earnings of any married person of this Commonwealth, whether these earnings are wages for labor, salary, property, business or otherwise, shall accrue to and enure to the separate benefit and use of that married person independently of the other spouse, and so as not to be subject to any legal claim of the other spouse. However, in any action in which the ownership of such property is in dispute, the person claiming such property shall be compelled, in the first instance, to show title and ownership in the property.
See 23 Pa. C. S. § 4105. Loans between married persons.
A married person may loan the other spouse money from the separate estate of the married person and take in security therefore a judgment or mortgage against the property of the other spouse which shall be valid as otherwise provided by law.
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