The following is my "Top 7" list of "family law misconceptions" that I frequently hear from new or prospective clients. The list is by no means exhaustive and assumes that there is no pre or post-nuptial agreement in place which might already address the issue. Likewise, as other states have different laws and procedures, this list is limited to Pennsylvania.
- “There is no alimony in Pennsylvania”. I am constantly amazed at how many new clients believe that alimony does not exist in Pennsylvania. Let me set the record straight: alimony is alive and kicking in Pennsylvania. Section 3701(a) of the Pennsylvania Divorce Code provides that “[w]here a divorce decree has been entered, the court may allow alimony, as it deems reasonable, to either party only if it finds that alimony is necessary.”
- “If my spouse committed adultery, I will not be obligated to pay him/her alimony”. Of the clients who are aware of the existence of alimony in Pennsylvania, many believe that adultery is a bar to a claim for alimony. Marital misconduct occurring during marriage is only one of 17 factors under §3701(b) of the Divorce Code to be considered in determining whether alimony is necessary and in determining the nature, amount, duration and manner of payment of alimony. It is not a bar, just a factor.
- “It only takes 90 days to get a divorce”. Under even the best possible circumstances, it will take more than 90 days from the date of filing a divorce complaint until the entry of the decree. I usually tell people that the best case scenario is 4½ to 5 months, assuming that both parties fully cooperate, there is a signed agreement disposing of all economic issues, the court is not backed up, and, most importantly, the stars are in perfect alignment. The worst case scenario could be several years or more depending upon the circumstances.
- “My spouse is not entitled to any of my pension”. Many clients believe that his/her spouse is not entitled to any portion of their pension since they worked for it. To the contrary, if the pension was acquired or increased in value during the marriage, then it is marital property (in full or in part) and the other spouse has a claim to it.
- “My spouse is not entitled to any asset that is titled solely in my name”. How an asset is titled has very little to do with whether or not it is subject to division and/or distribution in a divorce. The general rule is that if an asset is acquired or increases in value during marriage, then it is marital property (in full or in part) and the other spouse has a claim to it.
- “The marital property gets split 50/50”. While marital property is often divided between the parties on a 50/50 (equal) basis, the circumstances may warrant a disproportionate division. Pennsylvania law requires that the marital property be divided in an equitable fashion based upon a consideration of 11 factors set forth in §3502 of the Divorce Code. "Equitable” means fair, not equal. Therefore, if the equities weigh in favor of one spouse, he or she will likely receive more than 50% of the marital property.
- “If I quit my job, I will not have to pay support”. This is one of the more popular misconceptions. Support obligations (i.e. support for a child or spouse) are determined based upon actual income or earning capacity. If someone quits his or her job without an extremely good reason, their support obligation will be determined or will continue based on their established earning capacity. A frequent response that I hear when I tell people this is, “then they can just put me in jail.” That, however, it not a misconception for someone who deliberately takes action to avoid their support obligations. It may take some time, but under the right conditions, jail may be a reality.