Fault Divorce in Bucks County

One of the grounds for divorce can be fault, which states, 

§ 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.


Your Bucks County divorce lawyer should be wise to tell you that on April 2, 1980, Pennsylvania became the 48th state in the country to enact no-fault divorce legislation based on irretrievable breakdown of the marriage.  At the time, no-fault divorce was obtainable either on the mutual consent of the parties under Section 3301(c) or in the event of a three-year separation under Section 3301(d).  When the Divorce Code was overhauled on February 12 1988, the three-year separation requirement under Section 3301(d) was reduced to two years.  Over the past several years, attempts have been made in the General Assembly to reduce the separation period from two years to one year.  To date, these legislative efforts have been unsuccessful.  

Alimony and Support in a Bankruptcy

Can a person get rid of alimony or child support requirements through a Chapter 7 or Chapter 13 bankruptcy?  

It's a common story.  Most Bucks County divorce lawyers should know that  despite difficulty in distinguishing between property division and support obligations, several criteria for deciding the issue do exist. By far the most important two concerns are: 1) the intentions of the parties and/or the divorce court at the time the obligation was formed; and 2) the effect and function of the obligation imposed

A state or a federal court must apply federal bankruptcy law, not state law in an action under 11 U.S.C.S. § 523(a)(5). In assessing the nature of the underlying marital obligation at issue, courts will look to the intent, form, characteristics and purposes served by the imposed marital debt. Often these features of the debt can be judged only on the basis of state matrimonial law. However, characterization of the debt under state domestic relations law will not necessarily dispose of the dischargeability issue. Both the language of the § 523(a)(5) and the countless federal bankruptcy cases interpreting it dictate that a court eschew a rigid application of state law labels in favor of a search for the substance and function of the obligation involved. Moreover, this search must be conducted with an eye toward the purposes underlying the bankruptcy code and the exception to discharge created by § 523(a)

Then there is the case of Buccino v. Buccino, 397 Pa. Super. 241 (Pa. Super. Ct. 1990).  Here, Appellant challenged a decision of the Court of Common Pleas of Susquehanna County that found debts arising from the parties' divorce decree were necessary for the support and maintenance of appellee spouse and the parties' minor child and therefore were not subject to discharge in bankruptcy.  The parties' divorce decree imposed various financial liabilities on appellant. Subsequent to the entry of the divorce decree, appellant filed a bankruptcy petition with the federal bankruptcy court, listing appellee as a creditor and seeking discharge under 11 U.S.C.S. § 523(a)(5) of the liabilities imposed by the divorce decree. The bankruptcy court granted appellee's motion to have a state court determine the dischargeability of debts pursuant to the divorce decree. The state court held that the debts in question were necessary for the support and maintenance of appellee and the parties' minor child and therefore were not subject to discharge in bankruptcy. The appellate court affirmed the lower court's decision. The court held that the debts in question did not arise solely from the division of martial assets, but were rather in the nature of support or alimony and therefore were not dischargeable in bankruptcy proceedings.

The appellate court affirmed the decision of the lower court and held that the marital debts at issue were in the nature of support or alimony not merely the division of marital assets and therefore were not dischargeable in bankruptcy.

Marriage during existence of former marriage

23 Pa.C.S.A. § 1702 relates to "marriage during existence of former marriage."  The general rule states, 

If a married person, during the lifetime of the other person with whom the marriage is in force, enters into a subsequent marriage pursuant to the requirements of this part and the parties to the marriage live together thereafter as husband and wife, and the subsequent marriage was entered into by one or both of the parties in good faith in the full belief that the former spouse was dead or that the former marriage has been annulled or terminated by a divorce, or without knowledge of the former marriage, they shall, after the impediment to their marriage has been removed by the death of the other party to the former marriage or by annulment or divorce, if they continue to live together as husband and wife in good faith on the part of one of them, be held to have been legally married from and immediately after the date of death or the date of the decree of annulment or divorce.  

Pennsylvania law has two conflicting presumptions that relate directly to Section 1702.  The first is that a valid first marriage continues until it is dissolved by death, divorce, or annulment.  The second is that a second marriage is presumed to be valid.  In 1962, the Supreme Court of Pennsylvania stated that the second presumption does not automatically trump the first presumption.  The thrust behind both presumptions is to place the burden of proving the invalidity of the second marriage on the party claiming invalidity and to require proof of some nature that the first marriage was not dissolved by death, divorce or annulment at the time fo the second marriage.  The presumption that a first marriage has been terminated by death, divorce, or annulment is neither absolute nor inflexible, and the courts must resolve each case on the basis of its own facts and circumstances.  

The burden remains on the party and their Bucks County divorce lawyers supporting the validity of the second marriage to produce facts that will shift the burden of proof back to the party supporting the validity of the first marriage.  Because Pennsylvania law is not entirely clear about which party has the burden of proving the termination of the first marriage, the United States Court of Appeals for the Third Circuit has held that in the absence of an entirely mechanical rule, a trial court should weigh one presumption against the other in light of the social value of each party's conduct.  In other words, Pennsylvania law has not adopted the inflexible application of the first presumption, which would require, without exception, that the termination of the first marriage be shown conclusively before the second marriage can be recognized.  Instead, a trial court can consider equitable principles in balancing the conflicting presumptions.  

Service in your custody matter to an inmate

Here's the standard for service of a custody matter, including a petition to modify:

Service is the delivery of court papers to a plaintiff or a defendant. Court papers may be served by mail, but you must follow very specific rules. Court papers may be served by personal service - handing a copy of the paper to the other party – but not by you or a person related to you. Proof of Service, called Affidavit of Service or Certificate of Service, is a form you must file with the court explaining how court papers were delivered to the other party. A court will not act on your case unless you have served the court papers and filed proof that you followed Rules of Court.

Pa. R.C.P. 1930.4 states the options for service of original process, the custody or divorce complaint. Pa. R.C.P. 440 states the options for service of legal papers other than original process.

Please use the appropriate affidavit of service form for the mode of service you will use.  If you plan to serve copies of your legal papers by mail, please use form 1.  If you use hand deliver service, perhaps by a deputy sheriff or someone else not you or related to you, use form 2.  If your situation requires you to use other means of service different from original process, use form 4.  You will need to consult with the Pennsylvania Rules of Court regarding service in your type of case to ensure you are properly following the rules.

This handy document from the Bucks County Prothonotary will also help.  

But, what is a person is to do if the mother/father of their child is in prison?  If the person is in the Bucks County Correctional Facility, you will have to get special service from the Bucks County Sheriffs.  Your Bucks County divorce lawyer should know that you can't just mail it to the prisoner.  Even though, they are literally "captive", it doesn't matter.  You have to have special service.  Make sure to include the custody petition, order, and Criminal Record/Abuse History Verification in your service.  The cost (as of January 2016) is $79.  



Custody and Relocation - Changing Primary Custodian May Not Constitute Relocation Under Relocation Statute

In S.C. v. J.C., the Pennsylvania Superior Court affirmed the trial court’s opinion that where primary physical custody was switched from mother to father, and mother/father remained at their respective addresses, this change in physical custody did not qualify as a relocation even though mother and father resided 51 miles apart from each other.

Mother appealed the trial court’s decision that awarded primary physical custody to father based on the court’s application of the factors to determine custody set forth in 23 Pa. C.S. §5328(a).  Mother believed that because mother and father resided 51 miles apart from each other that the court should have applied the factors to determine a relocation as set forth in 23 Pa.C.S.§5337(h).

The Superior Court rejected mother’s argument and your Bucks County divorce lawyer should be aware of this important decision.  The court based their opinion on the fact that neither mother nor father was seeking to relocate from their current addresses, nor did either party intend to relocate.  Further, the court noted that father and mother had been exercising their custodial rights at their respective addresses since September 2013.  Where the change in primary custodian was not going to impair either parties custodial rights based on location the court refused to apply the relocation factors.

Who is responsible for child support payments in Bucks County?

Bucks County Child Support

Both custodial and non custodial parents have a financial responsibility to support their children in a Bucks County support case.

The parent with custody makes supports their children via the daily expenditures involved in raising children -- such as food, clothing and shelter. In a divorce settlement in Bucks County, there must be agreement as to the amounts paid by the non-custodial parent.  Remember -- it does not matter that the parties are married or not.  Support will still be required regardless of the marital status of the individuals.  As part of the process, both parents should present documents such as recent paystubs, social security numbers, addresses, tax returns and medical insurance.  

Procedure for Child Support


A conference is held at the Bucks County family court where each parent discloses their income and expenses.  Hopefully, however, the parties have disclosed and shared this information with their Bucks County divorce lawyers to expedite the child support determination.  Following the conference, the conference office recommends to the courts what he/she deems appropriate for child support.  The court will issue a temporary order which can be appealed within 20 days.  A judge will conduct a hearing and then make a final decision as to support amounts. Support payments must be made while awaiting the judge’s hearing.

How is the amount of child support determined in a Bucks County divorce?

Support in a Bucks County divorce is determined by guidelines issued by the Pennsylvania Supreme Court.  The income of BOTH parents and the total number of children involved are the determining factors in deciding the basic support amount needed.  Only net income is considered; taxes and medical insurance for children, social security deductions, alimony , union dues and employer required retirement plan payments are excluded.

How does a Bucks County court decide which parent receives child custody?

Bucks County Child Custody

This question is tremendously complicated.  Many Bucks County divorce attorneys have war stories about custody and the battles in the courtroom.  

The overriding legal basis the courts in Pennsylvania, including Bucks County, consider is: What is in the best interests of the child?  The child can request that one parent be given custody.  However, the courts will consider the age and maturity of the child making the request.  If a child is deemed too young or immature and only wants to live with the parent who gives them videogames and candy, that may not be in their best interest.  If, however, the child articulates issues important to him or her (i.e. they like the Bucks County school district they are in), the judge will take that into consideration.

Other Issues for Child Custody

The request is only one of many factors to be considered. The stability of the Bucks County parent and willingness to work amicably with the other parent are also considered. Abuse or the possibility of putting the child in harm’s way, educational concerns, employment conditions of the parents and their financial capabilities, and a desire to keep siblings together are also some of the factors.   Again, the main consideration is what the court deems is in the best interest of the child.  The court will review all aspects of the child’s situation and make a decision based on what it considers best overall for the child.

How does a parent file for child custody in Bucks County?

A parent can file for custody if the child has lived in Pennsylvania for at least six consecutive months.  If the child has lived in Bucks County, the custody petition would be filed through the Bucks County Domestic Relations office.There are some exceptions to filing for custody, such as if the child is less than six months of age or if the child was removed from the state due to an extreme emergency such as abuse.  A parent, through their Bucks County divorce lawyer, initially files for temporary custody which means he/she is awarded custody during the time awaiting for the formal court hearing.