Litigation

Litigation is the option that takes you to court. The vast majority of divorce, support, custody, or protection from abuse cases start with a court filing and end in a settlement agreement. One purpose of a court filing is to force the other party to negotiate. If the other party refuses to negotiate or the parties fail to reach an agreement, a judge or hearing officer decides how much support you pay or receive, when you have custody of your children, how you are going to divide your property, or who gets to live in the marital home.

In many Pennsylvania counties, there are different tracks to pursue divorce, child or spousal support, custody, or protection from abuse. Each track has its own procedures and different court personnel are involved on each track. In many Pennsylvania counties, the case is assigned to one judge, but the parties rarely go before a judge in the early stages while they work their way through the court system. One exception is protection from abuse which can go before a judge relatively quickly. If a true emergency arises in a divorce, support, or custody case, most courts have a procedure to go before a judge for emergency relief. The four litigation tracks are support, custody, divorce, and protection from abuse.

The support track starts with a filing for spousal support and/or child support. A divorce filing is not required. Most Pennsylvania counties have a domestic relations office to assist a person with filing for support. After a case is filed, it is scheduled for a conference followed by a hearing, if the case is not settled at the conference. In some counties, the conference and hearing are on the same day, whereas in other counties the conference is followed by a hearing at a future date. There are statewide guidelines and rules that set the parameters within which the judge or hearing officer must make their decision.

The custody track starts with filing a complaint for full custody, shared custody, partial custody, or visitation. Each of those terms has a different legal meaning. As with support, a divorce filing is not required. The custody track, in some counties, may be different based upon what type of custody you are requesting. Many counties have a program to encourage parties to settle the case. In Allegheny County, the parties must attend a mandatory education session followed by mandatory mediation. Attorneys are not permitted to attend the mediation. There are a few exceptions to mandatory mediation. If the custody case is not resolved at mediation, attorneys may then attend  further court proceedings. There is a new custody law in Pennsylvania that provides some guidance for the court. However, the court has more discretion in a custody case than in a support case which can make it more difficult to predict the outcome.

The divorce track begins with filing of a divorce complaint. The issues addressed are the divorce itself, that is, will the divorce decree be a “no-fault” decree and what type, how will property and debt be divided, who will own your home or will it be sold, who will receive alimony and how much, and will either party have to pay the other party’s attorney’s fees. The financial issues are sometimes referred to as the “economic claims” in a divorce case. The divorce complaint can also include, among other things, claims for child support and child custody even though a different track is used at the courthouse to address those issues. Depending upon the county, the divorce case and its economic claims may be heard by a judge, or by an attorney who works for the court or pursuant to a court-ordered assignment, who hears the case, and who makes a recommended order. The Pennsylvania Divorce Code contains a large number of factors for the court to consider in deciding the economic claims in a divorce case. It can be difficult to predict the outcome although an experienced family law attorney can usually provide a helpful opinion on possible outcomes.

Finally, the protection from abuse (PFA) track begins with a party going to court for a protection order. In Pennsylvania, a party can obtain a temporary protection order from a local district justice without going to a court of common pleas. However, the temporary protection order obtained is only effective until the next day that the court of common pleas is open and the party must go to that court for a longer term protection order because the temporary order will automatically expire. The court of common pleas has certain powers in a PFA case to decide who resides in the marital home and to resolve support and custody issues on a temporary basis. The court’s decision on these issues can have serious implications on how the case ultimately is resolved.

This brief overview is not intended to replace legal advice from an attorney. Whether a person should begin litigation and which track they should start with are very important decisions that should be made with the advice of an attorney, if possible. There is much more to the litigation process than can be described in this limited space. Please feel free to contact me via email or by telephone to schedule an appointment to discuss this option further.