About the Divorce Code
In the 1970’s divorce in the United States evolved from a fault-based, quasi-criminal system to a remedial legislative scheme designed to focus upon the realities of marriage and divorce and the problems faced by the parties and their children in divorce situations.
Divorce reform was slow to come in Pennsylvania. Although bills to introduce no-fault divorce or in some way modernize Pennsylvania’s divorce law were introduced in virtually every legislative session since the end of World War II, these attempts met with defeat in the face of the prevalent but erroneous notion that punitive divorce laws somehow kept families together and promoted domestic harmony. Even pleas from the judicial branch to the legislature failed to persuade a majority of Pennsylvania’s lawmakers that Pennsylvania, the first state to enact the Uniform Commercial Code, was embarrassingly late in overhauling its 18th century divorce laws. Pennsylvania’s divorce law remained virtually unchanged from 1785 to 1980.
Although no-fault divorce is popularly believed to have begun in California in 1970, such legislation has actually existed for over a hundred years and a majority of the states in the United States had long ago enacted no-fault divorce provisions in addition to the traditional fault grounds. The first unilateral divorce provision was enacted in Kentucky in 1850 and provided that, where parties had lived separate and apart for more than five years, either party could apply for a divorce. It was presumed that where parties did not live together for more than five years, the marriage was not viable and it was appropriate to permit a divorce. Typically, the statutory period of separation has lessened over the years: most states went from five years to three, then to 18 months and some states have even shortened this period to one year or less. California became the first state to entirely eliminate fault from its divorce laws.
The Divorce Code of 1980 was a major change in Pennsylvania’s divorce law and introduced not only no-fault divorce, but also post-divorce alimony and equitable distribution of marital property. The first major amendments to the Divorce Code were enacted in February, 1988. These amendments made a number of changes in the existing law, most notably reducing the statutory period of separation for unilateral divorce from three years to two. The Divorce Code, as amended, was not only a product of legislation but was the result of years of effort on the part of the matrimonial bar in drafting, lobbying and educating the public. The Family Law Section of the Pennsylvania Bar Association grew from a handful of lawyers and judges in the early seventies to its present membership of thousands of lawyers on a steady diet of new divorce bills and endless strategy sessions for law reform.
Although fault grounds are still retained in Pennsylvania’s divorce law and fault is one of the factors which the court may consider in awarding alimony, it is clear that the concept of fault in the divorce law is an anachronism whose days are, appropriately numbered. It is important that the divorce law provide, instead of punishment for marital “crimes”, remedies which permit the preservation of the family and affording economic justice to the parties and their children. There is still work to be done in further reforming Pennsylvania’s divorce laws, but in the meantime, the Divorce Code, as amended, provides Pennsylvania citizens with a powerful tool in the quest for economic justice and family stability.
The Amended Divorce Code
Chapter 31
Preliminary Provisions
Section 3101. Short title of part.
Section 3102. Legislative findings and intent.
Section 3103. Definitions.
Section 3104. Bases of jurisdiction.
Section 3105. Effect of agreement between parties.
Chapter 33
Dissolution of Marital Status
Subchapter A. General Provisions
Section 3301. Grounds for divorce.
Section 3302. Counseling.
Section 3303. Annulment of void and voidable marriages.
Section 3304. Grounds for annulment of void marriages.
Section 3305. Grounds for annulment of voidable marriages.
Section 3306. Proceedings to determine marital status.
Section 3307. Defenses.
Section 3308. Action where defendant suffering from mental disorder.
Section 3309. General appearance and collusion.
Subchapter B. Procedure
Section 3321. Hearing by master.
Section 3322. Jury trial.
Section 3323. Decree of court.
Subchapter C. Attack Upon Decrees
Section 3331. Limitations on attacks upon decrees
Section 3332. Opening or vacating divorce decrees.
Section 3333. Res judicata and estoppel.
Chapter 35
Property Rights
Section 3501. Definitions.
Section 3502. Equitable division of marital property.
Section 3503. Effect of divorce on property rights generally.
Section 3504. Disposition of property after termination of marriage.
Section 3505. Disposition of property to defeat obligations.
Section 3506. Statement of reasons for distribution.
Section 3507. Division of entireties property between divorced persons.
Section 3508. Conveyance of entireties property to divorced spouse.
Chapter 37
Alimony and Support
Section 3701. Alimony.
Section 3702. Alimony pendente lite, counsel fees and expenses.
Section 3703. Enforcement of arrearages.
Section 3704. Payment of support, alimony and alimony pendente lite.
Section 3705. Enforcement of foreign decrees.
Section 3706. Bar to alimony.
Section 3707. Effect of death of either party.
Chapter 31
Preliminary Provisions
Section 3101. Short title of part.
This part shall be known and may be cited as the Divorce Code.
Section 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:
(1) Make the law for legal dissolution of marriage effective for dealing with the realities of matrimonial experience.
(2) Encourage and effect reconciliation and settlement of differences between spouses, especially where children are involved.
(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 and their children 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 ensure a fair and just determination and settlement of their property rights.
(b) Construction of part – The objectives set forth in subsection (a) shall be considered in construing provisions of this part and shall be regarded as expressing the legislative intent.
Section 3103. Definitions.
The following words and phrases when used in this part shall have the meanings given to them in this section unless the context clearly indicates otherwise:
Alimony – An order for support granted by this Commonwealth or any other state to a spouse or former spouse in conjunction with a decree granting a divorce or annulment.
Alimony pendente lite – An order for temporary support granted to a spouse during the pendency of a divorce or annulment proceeding.
Divorce – Divorce from the bonds of matrimony.
Grounds for divorce – The grounds enumerated in Section 3301 (relating to grounds for divorce).
Irretrievable breakdown – Estrangement due to marital difficulties with no reasonable prospect of reconciliation.
Qualified professionals – Includes marriage counselors, psychologists, psychiatrists, social workers, ministers, priests, rabbis or other persons who, by virtue of their training and experience, are able to provide counseling.
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.
Spousal support – Care, maintenance and financial assistance.
Section 3104. Bases of jurisdiction.
(a) Jurisdiction – The courts shall have original jurisdiction in cases of divorce and for the annulment of void or voidable marriages and shall determine, in conjunction with any decree granting a divorce or annulment, the following matters, if raised in the pleadings, and issue appropriate decrees or orders with reference thereto, and may retain continuing jurisdiction thereof:
(1) The determination and disposition of property rights and interests between spouses, including any rights created by any antenuptial, postnuptial or separation agreement and including the partition of property held as tenants by the entireties or otherwise and any accounting between them, and the order of any spousal support, alimony, alimony pendente lite, counsel fees or costs authorized by law.
(2) The future care, custody and visitation rights as to children of the marriage or purported marriage.
(3) Any support or assistance which shall be paid for the benefit of any child of the marriage or purported marriage.
(4) Any property settlement involving any of the matters set forth in paragraphs (1), (2) and (3) as submitted by the parties.
(5) Any other matters pertaining to the marriage and divorce or annulment authorized by law and which fairly and expeditiously may be determined and disposed of in such action.
(b) Residence and domicile of parties – No spouse is entitled to commence an action for divorce or annulment under this part unless at least one of the parties has been a bona fide resident of this Commonwealth for at least six months immediately previous to the commencement of the action. Both parties shall be competent witnesses to prove their respective residence, and proof of actual residence within this Commonwealth for six months shall create a presumption of domicile within this Commonwealth.
(c) Powers of court – The court has authority to entertain an action under this part notwithstanding the fact that the marriage of the parties and the cause for divorce occurred outside of this Commonwealth and that both parties were at the time of the occurrence domiciled outside this Commonwealth. The court also has the power to annul void or voidable marriages celebrated outside this Commonwealth at a time when neither party was domiciled within this Commonwealth.
(d) Foreign forum – After the dissolution or annulment of a marriage in a foreign forum where a matter under subsection (a) has not been decided, a court of this Commonwealth shall have jurisdiction to determine a matter under subsection (a) to the fullest extent allowed under the Constitution of the United States.
(e) Venue – A proceeding for divorce or annulment may be brought in the county:
(1) where the defendant resides;
(2) if the defendant resides outside of this Commonwealth, where the plaintiff resides;
(3) of matrimonial domicile, if the plaintiff has continuously resided in the county;
(4) prior to six months after the date of final separation and with agreement of the defendant, where the plaintiff resides or, if neither party continues to reside in the county of matrimonial domicile, where either party resides; or
(5) after six months after the date of final separation, where either party resides.
Section 3105. Effect of agreement between parties.
(a) Enforcement – 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.
(b) Certain provisions subject to modification – A provision of an agreement regarding child support, visitation or custody shall be subject to modification by the court upon a showing of changed circumstances.
(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.
Section 3106. Premarital agreements.
(a) General rule. The burden of proof to set aside a premarital agreement shall be upon the party alleging the agreement to be unenforceable. A premarital agreement shall not be enforceable if the party seeking to set aside the agreement proves, by clear and convincing evidence, that:
(1) the party did not execute the agreement voluntarily; or
(2) the party, before execution of the agreement:
(i) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
(ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
(iii) did not have an adequate knowledge of the property or financial obligations of the other party.
(b) Definition. As used in this section, the term “premarital agreement” means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.
Chapter 33
Dissolution of Marital Status
Subchapter A – General Provisions
Section 3301. Grounds for divorce.
(a) Fault – The court may grant a divorce to the innocent and injured spouse whenever it is judged that the other spouse has:
(1) committed willful and malicious desertion, and absence from the habitation of the injured and innocent spouse, without a reasonable cause, for the period of one or more years.
(2) committed adultery.
(3) by cruel and barbarous treatment, endangered the life or health of the injured and innocent spouse.
(4) Knowingly entered into a bigamous marriage while a former marriage is still subsisting.
(5) Been sentenced to imprisonment for a term of two or more years upon conviction of having committed a crime.
(6) Offered such indignities to the innocent and injured spouse as to render that spouse’s condition intolerable and life burdensome.
(b) Institutionalization – The court may grant a divorce from a spouse upon the ground that insanity or serious mental disorder has resulted in confinement in a mental institution for at least 18 months immediately before the commencement of an action under this part and where there is no reasonable prospect that the spouse will be discharged from inpatient care during the 18 months subsequent to the commencement of the action. A presumption that no prospect of discharge exists shall be established by a certificate of the superintendent of the institution to that effect and which includes a supporting statement of a treating physician.
(c) Mutual consent – The court may grant a divorce where it is alleged that the marriage is irretrievably broken and 90 days have elapsed from the date of commencement of an action under this part and an affidavit has been filed by each of the parties evidencing that each of the parties consents to the 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 two years 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 two years 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 thy divorce.
(e) No hearing required in certain cases – If grounds for divorce alleged in the complaint or counterclaim are established under subsection (c) or (d), the court shall grant a divorce without requiring a hearing on any other grounds.
Section 3302. Counseling.
(a) Indignities – Whenever indignities under Section 3301(a)(6) (relating to grounds for divorce) is the ground for divorce, the court shall require up to a maximum of three counseling sessions where either of the parties requests it.
(b) Mutual consent – Whenever mutual consent under Section 3301(c) is the ground for divorce, the court shall require up to a maximum of three counseling sessions within the 90 days following the commencement of the action where either of the parties requests it.
(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 or may require such counseling where the parties have at least one child under 16 years of age.
(d) Notification of availability of counseling Whenever Section 3301(a)(6), (c) or (d) is the ground for divorce, the court shall, upon the commencement of an action under this part, notify both parties of the availability of counseling and, upon request, provide both parties a list of qualified professionals who provide such services.
(e) Choice of qualified professional unrestricted The choice of a qualified professional shall be at the option of the parties, and the professional need not be selected from the list provided by the court.
(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.
Section 3303. Annulment of void and voidable marriages.
(a) General rule – In all cases where a supposed or alleged marriage has been contracted which is void or voidable under this title or under applicable law, either party to the supposed or alleged marriage may bring an action in annulment to have it declared void in accordance with the procedures provided by this party and described by general rules.
(b) Common law marriages – In the case of a purported common law marriage where a party was under 18 years of age, a parent or guardian of the minor may bring a declaratory judgment proceeding during the party’s minority to have the marriage declared void.
Section 3304. Grounds for annulment of void marriages.
(a) General rule – Where there has been no confirmation by cohabitation following the removal of an impediment, the supposed or alleged marriage of a person shall be deemed void in the following cases:
(1) Where either party at the time of such marriage had an existing spouse and the former marriage had not been annulled nor had there been a divorce except where that party had obtained a decree of presumed death of the former spouse.
(2) Where the parties to such marriage are related within the degrees of consanguinity prohibited by Section 1304(e) (relating to restrictions on issuance of license).
(3) Where either party to such marriage was incapable of consenting by reason of insanity or serious mental disorder or otherwise lacked capacity to consent or did not intend to consent to the marriage.
(4) Where either party to a purported common law marriage was under 18 years of age.
(b) Procedures – In all cases of marriages which are void, the marriage may be annulled as set forth in Section 3303 (relating to annulment of void and voidable marriages) or its invalidity may be declared in any collateral proceeding.
Section 3305. Grounds for annulment of voidable marriages.
(a) General rule – The marriage of a person shall be deemed voidable and subject to annulment in the following cases:
(1) Where either party to the marriage was under 16 years of age unless the marriage was expressly authorized by the court.
(2) Where either party was 16 or 17 years of age and lacked the consent of parent or guardian or express authorization of the court and has not subsequently ratified the marriage upon reaching 18 years of age and an action for annulment is commenced within 60 days after the marriage ceremony.
(3) Where either party to the marriage was under the influence of alcohol or drugs and an action for annulment is commenced within 60 days after the marriage ceremony.
(4) Where either party to the marriage was at the time of the marriage and still is naturally and incurably impotent unless the condition was known to the other party prior to the marriage.
(5) Where one party was induced to enter into the marriage due to fraud, duress, coercion or force attributable to the other party and there has been no subsequent voluntary cohabitation after knowledge of the fraud or release from the effects of fraud, duress, coercion or force.
(b) Status of voidable marriages – In all cases of marriages which are voidable, either party to the marriage may seek and obtain an annulment of the marriage but, until a decree of annulment is obtained from a court of competent jurisdiction, the marriage shall be valid. The validity of a voidable marriage shall not be subject to attack or question by any person if it is subsequently confirmed by the parties to the marriage or if either party has died.
Section 3306. Proceedings to determine marital status.
When the validity of a marriage is denied or doubted, either or both of the parties to the marriage may bring an action for a declaratory judgment seeking a declaration of the validity or invalidity of the marriage and, upon proof of the validity or invalidity of the marriage, the marriage shall be declared valid or invalid by decree of the court and, unless reversed upon appeal, the declaration shall be conclusive upon all persons concerned.
Section 3307. Defenses.
(a) General rule – Existing common law defenses are retained as to the grounds enumerated in Section 3301(a) and (b) (relating to grounds for divorce). The defenses of condonation, connivance, collusion, recrimination and provocation are abolished as to the grounds enumerated in Section 3301(c) and (d).
(b) Adultery – In an action for divorce on the ground of adultery, it is a good defense and a perpetual bar against the action if the defendant alleges and proves, or if it appears in the evidence, that the plaintiff:
(1) has been guilty of like conduct;
(2) has admitted the defendant into conjugal society or embraces after the plaintiff knew of the fact;
(3) allowed the defendant’s prostitution or received hire from it; or
(4) exposed the defendant to lewd company whereby the defendant became involved in the adultery.
Section 3308. Action where defendant suffering from mental disorder.
If a spouse is insane or suffering from serious mental disorder, an action may be commenced under this part against that spouse under any ground for divorce or annulment.
Section 3309. General appearance and collusion.
The entry of a general appearance by, or in behalf of, a defendant does not constitute collusion. Collusion shall be found to exist only where the parties conspired to fabricate grounds for divorce or annulment, agreed to and did commit perjury or perpetrated fraud on the court. Negotiations and discussions of terms of property settlement and other matters arising by reason of contemplated divorce or annulment do not constitute collusion.
Subchapter B – Procedure
Section 3321. Hearing by master.
The court may appoint a master to hear testimony on all or some issues, except issues of custody and paternity, and return the record and a transcript of the testimony together with a report and recommendation as prescribed by general rules, or a judge of the court in chambers may appoint a master to hold a nonrecord hearing and to make recommendations and return the same to the court, in which case either party may demand a hearing de novo before the court.
Section 3322. Jury trial.
(a) Application for jury trial – After service of the complaint in divorce or annulment on the defendant in the manner prescribed by general rules or entry of a general appearance for the defendant, if either of the parties desires any matter of fact that is affirmed by one and denied by the other to be tried by a jury, that party may take a rule upon the opposite party, to be allowed by a judge of the court, to show cause why the issues of fact set forth in the rule should not be tried by a jury, which rule shall be served upon the opposite party or counsel for the opposite party.
(b) Disposition of application – Upon the return of the rule, after hearing, the court may discharge it, make it absolute or frame issues itself. Only the issues ordered by the court shall be tried. The rule shall not be made absolute when, in the opinion of the court, a trial by jury cannot be had without prejudice to the public morals.
Section 3323. Decree of court.
(a) General rule – In all matrimonial causes, the court may either dismiss the complaint or enter a decree of divorce or annulment of the marriage.
(b) Contents of decree – A decree granting a divorce or an annulment shall include, after a full hearing, where these matters are raised in any pleadings, an order determining and disposing of existing property rights and interests between the parties, custody, partial custody and visitation rights, child support, alimony, reasonable attorneys fees, costs and expenses and any other related matters, including the enforcement of agreements voluntarily entered into between the parties. In the enforcement of the rights of any party to any of these matters, the court shall have all necessary powers, including, but not limited to, the power of contempt and the power to attach wages.
(c) Bifurcation – In the event that the court is unable for any reason to determine and dispose of the matters provided for in subsection (b) within 30 days after the report of the master has been filed, it may enter a decree of divorce or annulment. Upon the request of either party and after a hearing, the court may order alimony pendente lite, reasonable counsel fees, costs and expenses and may make a temporary order necessary to protect the interests of the parties pending final disposition of the matters in subsection (b).
(c.1) Bifurcation. With the consent of both parties, the court may enter a decree of divorce or annulment prior to the final determination and disposition of the matters provided for in subsection (b). In the absence of the consent of both parties, the court may enter a decree of divorce or annulment prior to the final determination and disposition of the matters provided for in subsection (b) if:
(1) grounds have been established as provided in subsection (g); and
(2) the moving party has demonstrated that:
(i) compelling circumstances exist for the entry of the decree of divorce or annulment; and
(ii) sufficient economic protections have been provided for the other party during the pendency of the disposition of the matters provided for in subsection (b).
(d.1) Death of a party. In the event one party dies during the course of divorce proceedings, no decree of divorce has been entered and grounds have been established as provided in subsection (g), the parties’ economic rights and obligations arising under the marriage shall be determined under this part rather than under 20 Pa. C.S. (relating to decedents, estates and fiduciaries).
(e) Costs – The court may award costs to the party in whose favor the order or decree shall be entered or may order that each party shall pay their own costs or may order that costs be divided equitably as it shall appear just and reasonable.
(f) Equity power and jurisdiction of the court – In all matrimonial causes, the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this part and may grant such other relief or remedy as equity and justice require against either party or against any third person over whom the court has jurisdiction and who is involved in or concerned with the disposition of the cause.
(g) Grounds established. For purposes of subsection (c.1) and (d.1), grounds are established as follows:
(1) In the case of an action for divorce under section 3301(a) or (b) (relating to grounds for divorce), the court adopts a report of the master or makes its own findings that grounds for divorce exist.
(2) In the case of an action for divorce under section 3301(c), both parties have filed affidavits of consent.
(3) In the case of an action for divorce under section 3301(d), an affidavit has been filed and no counter-affidavit has been filed or, if a counter-affidavit has been filed denying the affidavit’s averments, the court determines that the marriage is irretrievably broken and the parties have lived separate and apart for at least two years at the time of the filing of the affidavit.
Subchapter C – Attacks Upon Decrees
Section 3331. Limitations on attacks upon decrees.
The validity of a decree of divorce or annulment issued by a court shall not be questioned, except by appeal, in any court or place in this Commonwealth after the death of either party to the proceeding. If it is shown that a party who subsequently attempts to question the validity of the decree had full knowledge of the facts and circumstances later complained of at the time of issuance of the decree or failed to take any action despite his knowledge within two years after the date of the decree, the party shall be barred from questioning the decree, and it shall be valid in all courts and places within this Commonwealth.
Section 3332. Opening or vacating decrees.
A motion to open a decree of divorce or annulment may be made only within the period limited by 42 Pa. C.S. §5505 (relating to modification of orders) and not thereafter. The motion may lie where it is alleged that the decree was procured by intrinsic fraud or that there is new evidence relating to the cause of action which will sustain the attack upon its validity. A motion to vacate a decree or strike a judgment alleged to be void because of extrinsic fraud, lack of jurisdiction over the subject matter or a fatal defect apparent upon the face of the record must be made within five years after entry of the final decree. Intrinsic fraud relates to a matter adjudicated by the judgment, including perjury and false testimony, whereas extrinsic fraud relates to matters collateral to the judgment which have the consequences of precluding a fair hearing or presentation of one side of the case.
Section 3333. Res judicata and estoppel.
The validity of a divorce or annulment decree granted by a court having jurisdiction over the subject matter may not be questioned by a party who was subject to the personal jurisdiction of the court except by direct appeal provided or prescribed by law. A party who sought and obtained a decree, financed or agreed to its procurement, or accepted a property settlement, alimony pendente lite or alimony pursuant to the terms of the decree, or who remarries after the decree, or is guilty of laches, is barred from making a collateral attack upon the validity of the decree unless, by clear and convincing evidence, it is established that fraud by the other party prevented the making of a timely appeal from the divorce or annulment decree.
Chapter 35
Property Rights
Section 3501. Definitions.
(a) General rule – As used in this chapter, “marital property” means all property acquired by either party during the marriage and the increase in value of any nonmarital property acquired pursuant to paragraphs (1) and (3) as measured and determined under subsection (a.1). However, marital property does not include:
(1) Property acquired prior to marriage or property acquired in exchange for property acquired prior to the marriage.
(2) Property excluded by valid agreement of the parties entered into before, during or after the marriage.
(3) Property acquired by gift, except between spouses, bequest, devise or descent or property acquired in exchange for such property.
(4) Property acquired after final separation until the date of divorce, except for property acquired in exchange for marital assets.
(5) Property which a party has sold, granted, conveyed or otherwise disposed of in good faith and for value prior to the date of final separation.
(6) Veterans’ benefits exempt from attachment, levy or seizure pursuant to the Act of September 2, 1958 (Public Law 85-857, 72 Stat. 1229), as amended, except for those benefits received by a veteran where the veteran has waived a portion of his military retirement pay in order to receive veterans’ compensation.
(7) Property to the extent to which the property has been mortgaged or otherwise encumbered in good faith for value prior to the date of final separation.
(8) Any payment received as a result of an award or settlement for any cause of action or claim which accrued prior to the marriage or after the date of final separation regardless of when the payment was received.
(a.1) Measuring and determining the increase in value of nonmarital property. The increase in value of any nonmarital property acquired pursuant to subsection (a)(1) and (3) shall be measured from the date of marriage or later acquisition date to either the date of final separation or the date as close to the hearing on equitable distribution as possible, whichever date results in a lesser increase. Any decrease in value of the nonmarital property of a party shall be offset against any increase in value of the nonmarital property of that party. However, a decrease in value of the nonmarital property of a party shall not be offset against any increase in value of the nonmarital property of the other party or against any other marital property subject to equitable division.
(b) Presumption – All real or personal property acquired by either party during the marriage is presumed to be marital property regardless of whether title is held individually or by the parties in some form of co-ownership such as joint tenancy, tenancy in common or tenancy by the entirety. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (a).
(c) Defined benefit retirement plans. Notwith-standing subsections (a), (a.1) and (b):
(1) In the case of the marital portion of a defined benefit retirement plan being distributed by means of a deferred distribution, the defined benefit plan shall be allocated between its marital and nonmarital portions solely by use of a coverture fraction. The denominator of the coverture fraction shall be the number of months the employee spouse worked to earn the total benefit and the numerator shall be the number of such months during which the parties were married and not finally separated. The benefit to which the coverture fraction is applied shall include all post-separation enhancements except for enhancements arising from post-separation monetary contributions made by the employee spouse, including the gain or loss on such contributions.
(2) In the case of the marital portion of a defined benefit retirement plan being distributed by means of an immediate offset, the defined benefit plan shall be allocated between its marital and nonmarital portions solely by use of a coverture fraction. The denominator of the coverture fraction shall be the number of months the employee spouse worked to earn the accrued benefit as of a date as close to the time of trial as reasonably possible and the numerator shall be the number of such months during which the parties were married and not finally separated. The benefit to which the coverture fraction is applied shall include all pos-separation enhancements up to a date as close to the time of trial as reasonably possible except for enhancements arising from post-separation monetary contributions made by the employee spouse, including the gain or loss on such contributions.
Section 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 manners 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:
(1) The length of the marriage.
(2) Any prior marriage of either party.
(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
(4) The contribution by one party to the education, training or increased earning power of the other party.
(5) The opportunity of each party for future acquisitions of capital assets and income.
(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.
(8) The value of the property set apart to each party.
(9) The standard of living of the parties established during the marriage.
(10) The economic circumstances of each party, including federal, state and local tax ramifications, at the time the division of property is to become effective.
(10.1) The Federal, State and local tax ramifications associated with each asset to be divided, distributed or assigned, which ramifications need not be immediate and certain.
(10.2) The expense of sale, transfer or liquidation associated with a particular asset, which expense need not be immediate and certain.
(11) Whether the party will be serving as the custodian of any dependent minor children.
(b) Liens – The court may impose a lien or charge upon property of a party as security for the payment of alimony or any other award for the other party.
(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 designation 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.
(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 the collection of the rents and profits of the real estate 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.
Section 3503. Effect of divorce on property rights generally.
Whenever a decree or judgment is granted which nullifies or absolutely terminates the bonds of matrimony, all property rights which are dependent upon the marital relation, except those which are vested rights, are terminated unless the court expressly provides otherwise in its decree. All duties, rights and claims accruing to either of the parties at any time theretofore in pursuance of the marriage shall cease, and the parties shall severely be at liberty to marry again as if they had never been married.
Section 3504. Disposition of property after termination of marriage.
Unless provided otherwise by the court, whenever a decree of divorce or annulment is entered by a court of competent jurisdiction, both parties whose marriage is terminated or affected shall have complete freedom of disposition as to their separate real and personal property and may mortgage, sell, grant, convey or otherwise encumber or dispose of their separate property, whether the property was acquired before, during or after coverture, and neither need join in, consent to or acknowledge a deed, mortgage or instrument of the other.
Section 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 be issued 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.
(c) Discovery – Discovery under this part shall be as provided for all other civil actions under the Pennsylvania Rules of Civil Procedure.
(d) Constructive trust for undisclosed assets – If a party fails to disclose information required by general rule of the Supreme Court and in consequence thereof an asset or assets with a fair market value of $1,000 or more is omitted from the final distribution of property, the party aggrieved by the nondisclosure may at any time petition the court granting the award to declare the creation of a constructive trust as to all undisclosed assets for the benefit of the parties and their minor or dependent children, if any. The party in whose name the assets are held shall be declared the constructive trustee unless the court designates a different trustee, and the trust may include any terms and conditions the court may determine. The court shall grant the petition upon a finding of a failure to disclose the assets as required by general rule of the Supreme Court.
(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.
Section 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.
Section 3507. Division of entireties property between divorced persons.
(a) General rule – Whenever married persons holding property as tenants by entireties are divorced, they shall, except as otherwise provided by an order made under this chapter, thereafter hold the property as tenants in common of equal one-half shares in value, and either of them may bring an action against the other to have the property sold and the proceeds divided between them.
(b) Division of proceeds – Except as provided in subsection (c), the proceeds of a sale under this section, after the payment of the expenses of sale, shall be equally divided between the parties.
(c) Liens – The amount of any lien entered of record jointly against both of the parties, together with any interest due on the lien and docket costs, shall be deducted from the proceeds of sale and the amount of the liens entered of record against either of the parties, together with any interest due on the liens and docket costs, shall be deducted from the share of the party against whom the lien is filed and paid to the person or persons to whom the amount of the lien is due and payable.
(d) Record of divorce decree – No decree of divorce shall be effective to change the existing law relating to liens upon property held by tenants by the entireties except a decree of divorce or a certified copy of the decree is recorded in the office of the Recorder of Deeds of the county where the property is situate. The decree shall be indexed in the grantor’s index against each of the tenants by the entireties.
Section 3508. Conveyance of entireties property to divorced spouse.
Whenever married persons have acquired real estate as tenants by entireties and thereafter divorced, either former spouse, except as otherwise provided by an order made under this chapter, may convey to the other, without the joinder of the other, the grantor’s interest in the real estate so that the grantee holds the real estate in fee simple, freed from all right, title and interest which the grantor had in the real estate as a tenant by the entireties.
Chapter 37
Alimony and Support
Section 3701. Alimony.
(a) General rule – Where 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.
(b) Factors relevant – In determining whether alimony is necessary and in determining the nature, amount, duration and manner of payment of alimony, the court shall consider all relevant factors, including:
(1) The relative earnings and earning capacities of the parties.
(2) The ages and the physical, mental and emotional condition of the parties.
(3) The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.
(4) The expectancies and inheritances of the parties.
(5) The duration of the marriage.
(6) The contribution by one party to the education, training or increased earning power of the other party.
(7) The extent to which the earning power, expenses or financial obligations of a party will be affected by reason of serving as the custodian of a minor child.
(8) The standard of living of the parties established during the marriage.
(9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.
(10) The relative assets and liabilities of the parties.
(11) The property brought to the marriage by either party.
(12) The contribution of a spouse as homemaker.
(13) The relative needs of the parties.
(14) The marital misconduct of either of the parties during the marriage. The marital misconduct of either of the parties from the date of final separation shall not be considered by the court in its determination relative to alimony.
(15) The federal, state and local tax ramifications of the alimony award.
(16) Whether the party seeking alimony lacks sufficient property, including, but not limited to, property distributed under Chapter 35 (relating to property rights), to provide for the party’s reasonable needs.
(17) Whether the party seeking alimony is incapable of self-support through appropriate employment.
(c) Duration – The court in ordering alimony shall determine the duration of the order, which may be for a definite or an indefinite period of time which is reasonable under the circumstances.
(d) Statement of reasons – In an order made under this section, the court shall set forth the reason for its denial or award of alimony and the amount thereof.
(e) Modification and termination – An order entered pursuant to this section is subject to further order of the court upon changed circumstances of either party of a substantial and continuing nature whereupon the order may be modified, suspended, terminated or reinstituted or a new order made. Any further order shall apply only to payments accruing subsequent to the petition for the requested relief. Remarriage of the party receiving alimony shall terminate the award of alimony.
(f) Status of agreement to pay alimony – Whenever the court approves an agreement for the payment of alimony voluntarily entered into between the parties, the agreement shall constitute the order of the court and may be enforced as provided in Section 3703 (relating to enforcement of arrearages).
Section 3702. Alimony pendente lite, counsel fees and expenses.
In proper cases, upon petition, the court may allow a spouse reasonable alimony pendente lite, spousal support and reasonable counsel fees and expenses. Reasonable counsel fees and expenses may be allowed pendente lite, and the court shall also have authority to direct that adequate health and hospitalization insurance coverage be maintained for the dependent spouse pendente lite.
Section 3703. Enforcement of arrearages.
If at any time a party is in arrears in the payment of alimony or alimony pendente lite as provided for in Sections 3701 (relating to alimony) and 3702 (relating to alimony pendente lite, counsel fees and expenses), the court may, after hearing, in order to effect payment of the arrearages:
(1) enter judgment.
(2) authorize the taking and seizure of the goods and chattels and the collection of the rents and profits of the real estate of the party;
(3) attach no more than 50% of the wages of the party;
(4) award interest on unpaid installments;
(5) require security to insure future payments.
(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 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.
Section 3704. Payment of support, alimony and alimony pendente lite.
When so ordered by the court, all payments of child and spousal support, alimony or alimony pendente lite shall be made to the domestic relations section of the court which issued the order or the domestic relations section of the court at the residence of the party entitled to receive the award. The domestic relations section shall keep an accurate record of all payments and shall notify the court immediately whenever a person subject to a payment order is 30 days in arrears of payment so that appropriate action may be taken to enforce the order of the court. The domestic relations section shall distribute the payments to the persons entitled to them as soon as possible after receipt.
Section 3705. Enforcement of foreign decrees.
(a) General rule – Whenever a person subject to a valid decree of a sister state or territory for the distribution of marital property or for the payment of alimony, or alimony pendente lite, or the property of that person is found within this Commonwealth, the obligee of the decree may petition the court where the obligor or the property of the obligor is found to register, adopt as its own and enforce the decree as a properly issued and authenticated decree of a sister state or territory. Upon registration and adoption, such relief and for enforcement as is provided or prescribed by law in similar cases originally commenced in this Commonwealth shall be available. A copy of the decree and order shall be forwarded to the court of the state or territory which issued the original decree. The obligor shall have whatever defenses and relief are available to the obligor in the state or territory which issued the original decree and may question the jurisdiction of that court if not otherwise barred. Interest may be awarded on unpaid installments and security may be required to insure future payments as in cases originally commenced in this Commonwealth. Where property of the obligor, but not the person of the obligor, is found within this Commonwealth, there shall be jurisdiction quasi in rem, and, upon registration and adoption of the decree of the sister state or territory, relief and enforcement of the decree shall be available as in other proceedings which are quasi in rem.
(b) Optional procedure – The right of a judgment creditor to proceed under 42 Pa. C.S. §4306 (relating to enforcement of foreign judgments) or otherwise instead of proceeding under this section remains unimpaired.
Section 3706. Bar to alimony.
No petitioner is entitled to receive an award of alimony where the petitioner, subsequent to the divorce pursuant to which alimony is being sought, has entered into cohabitation with a person of the opposite sex who is not a member of the family of the petitioner within the degrees of consanguinity.
Section 3707. Effect of death of either party.
Upon the death of the payee party, the right to receive alimony pursuant to this chapter shall cease. Upon the death of the payor party, the obligation to pay alimony shall cease unless otherwise indicated in an agreement between the parties or an order of court.
About Wilder Mahood McKinley & Oglesby
Wilder Mahood McKinley & Oglesby is a law firm that provides personal individualized services to a limited number of clients in divorce cases and related matters. Since 1978, the lawyers have represented a broad range of business and professional people and their spouses in complex divorce litigation in Western Pennsylvania. The firm limits its practice to matrimonial law, including divorce, support, paternity, property matters and custody at trial and appellate levels. The firm manages complex divorce cases by utilizing the collective expertise of the firm for the benefit of each individual client. Firm lawyers are knowledgeable and experienced in all areas of family law.
Members of the firm have taught and lectured on family law and professional ethics issues to other lawyers in continuing legal education programs and written extensively for professional publications and periodicals on both the local, state and national levels. The treatise, Pennsylvania Family Law Practice and Procedure, now in its seventh edition, is authored by members of the firm. The first Pittsburgh lawyer to be certified as a matrimonial arbitrator by the American Academy of Matrimonial Lawyers is a member of the firm.
Wilder Mahood McKinley & Oglesby lawyers have held leadership positions in the American Academy of Matrimonial Lawyers, the Pennsylvania Bar Association, the Allegheny County Bar Association and numerous community organizations.
The firm’s lawyers have been recognized in The Best Lawyers in America, Pennsylvania Super Lawyers and Martindale-Hubbell AV® Preeminent attorney ratings.
The Lawyers
James E. Mahood
Brian E. McKinley
Darren K. Oglesby
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Bruce L. Wilder, Of Counsel
436 Seventh Avenue
Suite 1050
Pittsburgh, PA 15219
412) 261-4040
The law firm of Wilder, Mahood, McKinley & Oglesby can provide the guidance and representation you need. Contact our seasoned lawyers online or call our office in Pittsburgh, Pennsylvania, at 412-261-4040.
