Laws governing divorce, custody, and child support issues differ significantly from state to state. Therefore, in family law cases that involve multiple states, the laws of one state may work to the advantage of one party, and to the disadvantage of the other. This can certainly be true regarding domestic relations laws of Delaware and Pennsylvania. Below are a few areas of significant differences between Delaware and Pennsylvania law.
Both Delaware and Pennsylvania laws provide that a financially disadvantaged spouse can receive support from a financially advantaged spouse during the pendency of and following divorce.
Delaware has no formula for alimony, while the divorce and financial matters are pending (interim alimony), nor following the resolution of financial matters (permanent alimony). Rather, both interim and permanent alimony are determined by the needs of the financially disadvantaged spouse and the ability to pay of the financially advantaged spouse. If the financially disadvantaged spouse can demonstrate that she or he cannot maintain the same standard of living with their own financial resources, that individual is considered a dependent spouse and thus eligible for interim and permanent alimony. If the financially disadvantaged spouse cannot establish dependency, no alimony will be awarded, regardless of the financial resources of the other spouse. Assuming that dependency is established, the financial resources and needs of both spouses will be examined in order to determine the proper alimony awarded.
In Delaware, interim alimony can be awarded from the time that a divorce petition is filed until the final resolution of the financial matters associated with divorce. Permanent alimony is determined in the final resolution of financial matters. Any form of alimony will terminate upon the death of either party, the recipient’s remarriage, or the recipient’s cohabitation. Additionally, if the marriage lasted less than 20 years, any alimony awarded cannot exceed 50% of the length of the marriage. For marriages of greater than 20 years, alimony is indefinite. During the period of alimony eligibility, either party may seek a modification of alimony based upon a real and substantial change in circumstances.
In Pennsylvania, from the time the parties separate until the finalization of the divorce, a financially disadvantaged spouse can seek spousal support, or alimony pendente lite. Unlike Delaware, there is no requirement to prove a financial need, as the amount of support is calculated based upon a formula. In general, if there are minor children, the spousal support award will be 30% of the net income differential between the two parties after child support is considered. If there are no minor children, the spousal support award is 40% of the net income differential between the spouses. Alimony is awarded after divorce, and, like Delaware, is based upon the reasonable needs of the financially disadvantaged spouse and the ability to pay of the other spouse. Alimony may be modified based upon a substantial change in circumstances. Like Delaware, Pennsylvania alimony terminates upon the death of either party, the recipient’s remarriage, or the recipient’s cohabitation. The length of the alimony term in Pennsylvania varies based upon the circumstances of each case.
The differences in Delaware and Pennsylvania law can lead to vastly different outcomes for a client. By way of example, a financially disadvantaged spouse may qualify for spousal support in Pennsylvania, but not interim alimony in Delaware. Additionally, a financially superior spouse in Delaware could be faced with a much longer alimony obligation, particularly in a long term marriage.
Grounds for Divorce
Both Delaware and Pennsylvania are “no fault” states, and divorce can be granted based upon an irretrievable breakdown of the marriage. While both states have laws providing for “fault” grounds, divorces are typically not granted on this basis. However, the divorce process is very different in Delaware and Pennsylvania. In Delaware, spouses can be divorced once they have been separated for six (6) months, while in Pennsylvania, the time period is after 90 days by the consent of both parties or one or two years depending on when they separated if one spouse does not agree to the divorce. Additionally, Delaware addresses financial matters incident to divorce after the Divorce Decree is issued. In Pennsylvania, the Divorce Decree is typically issued after the financial matters have been resolved. The timing of the Divorce Decree can be important for tax filing purposes among other reasons.
Modifiability of Custody Orders
In both Delaware and Pennsylvania, custody orders that are entered based upon an agreement of the parties can be modified at any time consistent with the best interests of the child. However, the standard for modification of an order entered by a judge after a hearing is very different in these two states. In Pennsylvania, a party may seek the modification of any order, even one issued by a judge after a hearing, if it is in the best interests of the child. In Delaware, a party cannot file to modify an order issued by a judge after a hearing for two years unless they can demonstrate that the continuing enforcement of that order will jeopardize the child’s physical health or significantly impair his/her emotional development. Practically, modification of any custody order can be difficult, as courts in either state will examine whether and to what extent circumstances have changed before agreeing to a modification of a custody order.
Grandparent custody rights are generally limited, but there are important differences between Delaware and Pennsylvania. In Delaware, grandparents can only obtain custody absent the agreement of the parents if the grandparents demonstrate that the parents are unable to care for the child. In Delaware, this is referred to as a Guardianship Order. A Guardianship Order will generally be rescinded if the parent can demonstrate that they are fit to care for the children. In Pennsylvania, grandparents can also seek custody on a variety of different bases if the parent is unable to care for the child.
The opinions expressed in this article are for general information purposes only and are not intended to provide specific legal advice or recommendations. If you have a family law matter that may involve the laws of Delaware and Pennsylvania, MacElree Harvey family law attorneys will help you to determine your best course of action. Patrick J. Boyer is licensed in both Delaware and Pennsylvania. He can be reached at 302-654-4454 or at [email protected].