Ways to Divorce
Divorce can be a difficult as well as psychologically tolling process on all parties involved. When it comes to divorce, there is not just one way to divorce. Parties can choose to each hire a lawyer to represent them during the divorce process, parties can choose to work together with a mediator to assist them in crafting an amicable agreement or each party can choose to hire a collaborative divorce lawyer and work with each other and the lawyers with the goal of resolving issues and avoiding court. A divorce can be uncontested, contested or granted by default. The differences are explained below:
It is always the least costly and best choice to try and resolve a divorce in an uncontested way. An uncontested divorce is where you and spouse work together to craft an agreement on the terms of your divorce. By working together and agreeing on the terms, you can avoid going to court.
Parties can work together with a neutral mediator to craft the terms of the divorce and then file the divorce papers themselves with the court. They can also each hire a collaborative divorce attorney who will work with them to craft an amicable divorce agreement with the goal of avoiding court. If the parties disagree and decide to go to court, the collaborative divorce attorneys will discontinue representation. Or, a party can choose to hire a divorce lawyer to file divorce papers and craft an agreement to present to the spouse for signing 90 days from service of the divorce complaint on the spouse. If the parties consent to the divorce and sign the paperwork, the divorce papers can be filed with court and the parties will receive their divorce decree thereafter.
A court will grant a divorce by “default” if a party files for divorce and the spouse does not response after being properly served with the divorce complaint and paperwork. This can be used when a spouse’s whereabouts are unknown or is unwilling to participate in the divorce process.
If you and your spouse cannot come to an agreement on the terms of your divorce, you can bring your issues in front of a Master and Judge. You will go through the process of exchanging discovery such as financial documentation, settlement negotiations, hearings, and, if you cannot come to an agreement after these exchanges, you will have a trial.
Fault and No-Fault Divorce
It used be that a divorce could not be granted unless there were fault grounds. Those days have passed and we now have no-fault divorces. Parties can still choose to divorce on fault grounds for reasons of adultery, abandonment; however, it can be very expensive due to the litigious nature of the divorce.
A no-fault divorce is where instead of proving that your spouse is to blame for the divorce, you can consent to the divorce under 3301(c) in Pennsylvania or divorce by Irretrievable breakdown of the marriage under 3301(d) in Pennsylvania. Under 3301(c), the parties can consent to the divorce by filing an affidavit of consent with the court 90 days after your spouse has been served with the divorce complaint. If both parties consent to the divorce, you can craft and file an agreement with the court and request entry of your divorce.
Under 3301(d), the parties must prove a separation from their spouse for a period of time to request grounds to divorce. If the period of separation from your spouse began on or after Dec. 5, 2016 you will need to be living separate and apart from your spouse for a period of ONE YEAR. If the period of separation from your spouse began before Dec. 5, 2016, you are required to be living separate and apart from your spouse for a period of TWO YEARS.
Mediation is an alternative method of dispute resolution, which is available to parties undergoing separation, divorce or custody issues. Mediation is different than traditional divorce or custody litigation, because the parties work together to decide between themselves what is best for them and their children. In traditional divorce litigation, the parties are adversaries and the decision is left in the hands of the Master or Judge. In Divorce or Custody Mediation, the mediator does not act as an advocate or a Judge, rather, the mediator helps the parties work together to decide on their own how to resolve their differences.
Collaborative Divorce and Custody Practice is a voluntary dispute resolution process which allows parties to settle without resorting to traditional divorce and custody litigation. You and your spouse will each hire lawyers and work with the lawyers and each other to collaborative resolve issues that are in the best interests of everyone. The lawyers and clients sign an Agreement, which outlines that if the parties are unable to reach a settlement, the lawyers will withdraw from the case and assist the clients in transitioning the case to trial attorneys. By working in an open, cooperative environment, parties and their counsel can work toward a settlement that benefits everyone.
In Collaborative Law Practice, the parties voluntarily disclose all information relevant and material to the issues that must be decided, the parties agree to use good faith efforts in their negotiations to reach mutually beneficial settlements, each party must be represented by an attorney, the representation of the attorney ends upon any contested court proceeding, the parties may jointly engage experts as needed whose engagement terminates upon contested court proceedings.