Critical Questions About Divorce

My spouse and I have agreed we should divorce; can we both use the same attorney?

Can we just get a legal separation?

What should I do prior to separating?

I do not want to attend counseling, can the court order me to attend?

Why must I wait two years to get divorced?

What should I do if I am served with a divorce complaint?

Can the other party be forced to pay my attorney's fees?

What is equitable distribution?

What should I do if I am a victim of domestic violence?


My spouse and I have agreed we should divorce; can we both use the same attorney?

Assuming all attempts at reconciliation, counseling, and other efforts to maintain the marital relationship have failed and a divorce is imminent, parties to a divorce action are encouraged to work out a plan that moves toward an agreement on a division of property, support and custody. Although, the parties may reach an agreement between themselves, they both cannot be represented by the same attorney. An attorney can represent only one party in family law litigation. It is, however, possible for only one party to hire an attorney. That attorney then prepares the agreements that set forth the terms the parties reached. This attorney can only give advice to the party that has retained the attorney's services. The unrepresented spouse would act at their own peril.

Pennsylvania technically does not have any such status between parties recognized as a "legal separation." Separation between divorcing spouses occurs when one spouse conveys to the other their intent that they no longer wish to remain married. The intent not to be married may be conveyed through the actual filing of a divorce complaint, by the spouse vacating the marital residence, or, in some cases, the parties can be separate and apart within the same household. If it is the intent of spouses to live separate and apart under the same household, that intent should be conveyed to the other in writing.

What should I do prior to separating?

Prior to any physical separation, you should secure and/or copy all important documents contained within the household. Including, but not limited to, deeds, mortgages, bank account statements, 401(k), IRA, pension statements, Social Security benefit statements, business records, tax returns, stock certificates, bonds, etc. An inventory of the personal property in the marital residence should be taken, but most importantly, the parties should consult with a qualified family law attorney prior to separation.

I do not want to attend counseling, can the court order me to attend?

Yes. Pennsylvania law provides that upon request of either party, the court may require up to three counseling sessions with a qualified counselor. Generally, the requesting party is responsible for payment of the counselor.

Why must I wait One year to get divorced?

It is not necessary to be separate and apart for one year to obtain a divorce. However, under Pennsylvania law, parties may divorce based upon fault, no-fault or a one-year period of separation. Under a fault-based divorce, the party alleging fault must show that they have suffered indignities from the other spouse. A no-fault divorce requires no such finding of fault or grounds for indignities but, rather, the consent of both parties. Each party may consent after the required 90-day "cooling off" period. If, however, either of the two spouses refuses to consent to a no-fault divorce, and, there are no fault-based indignities to obtain a fault divorce, the only other method by which the parties may divorce in Pennsylvania is a one-year period of separation. Prior to any divorce filing, you should consult with a qualified family law attorney to determine which counts of divorce are most appropriate.

What should I do if I am served with a divorce complaint?

You should immediately contact an attorney. If you fail to do so, and you do not respond to the divorce complaint, a decree of divorce may be entered, even without your consent and you may lose certain legal rights to which you are otherwise entitled.

Can the other party be forced to pay my attorney's fees?

If you have received a divorce complaint, or have filed one against your spouse, you may see a claim that the opposing spouse pay your attorney's fees. Courts have the power to order one party to pay the other party's attorney's fees in divorce cases. However, the actual number of instances in which the court awards attorney's fees is relatively low. Absent a substantial difference in the parties incomes, and/or assets, the court is unlikely to award a payment of fees to the other spouse.
Other than a disparity of income, a second reason for an award of attorney's fees could be based upon misconduct or contempt by one party against the other. If one party fails to do something he or she should do, or does something he or she shouldn't do, the other party can seek enforcement and sanctions including an award of attorney's fees. The count seeking attorney's fees as part of the divorce complaint is generally raised to preserve the issue if circumstances ultimately warrant such a claim.

What is equitable distribution?

Equitable distribution is the manner by which parties, who cannot agree upon division of their marital estate, have their property divided. At the time of a hearing, a master/judge, after hearing evidence of marital assets and debts will enter an order dividing the marital estate between the parties. The court considers 11 different factors prior to entering an order of equitable distribution. You should discuss with your attorney, the factors the court considers, and how they relate to your particular circumstances prior to moving forward with either settlement or litigation.

What should I do if I am a victim of domestic violence?

If you, or someone you know, are a victim of spousal abuse, you should immediately contact your local law enforcement agency. They will be able to advise you how to obtain an emergency protection from abuse (PFA) order. You may also wish to contact a local domestic abuse shelter or crisis hotline.


Casale & Bonner, P.C., is happy to answer any questions you have about divorce. Call us at 570-326-7044.