This is a question I receive frequently in some variation when discussing both custody cases and equitable distribution in divorce cases. Sometimes, it isn’t a question, it is more of statement, “Well PA is 50/50, right?”. The short answer is no. Let me explain.
Part I: Custody
For custody cases, let’s first differentiate between legal custody and physical custody. Legal custody is the right to have a say in major decisions affecting your child and his/her upbringing such as educational, medical, and religious decisions. Legal custody is generally shared. Physical custody is exactly what it sounds like – the schedule that governs physical possession of the children. Despite what your friend, family member, or neighbor down the street told you, there is no presumption that custody will be divided 50/50 in Pennsylvania. When determining a custody schedule, Hearing Officers and Judges are required to analyze the 16 factors set forth in the statute.
The set forth in the statute (23 Pa. C.S. § 5328) include: “(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party; (2) The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child; (3) The parental duties performed by each party on behalf of the child; (4) The need for stability and continuity in the child’s education, family life and community life; (5) The availability of extended family; (6) The child’s sibling relationships; (7) The well-reasoned preference of the child, based on the child’s maturity and judgment; (8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm; (9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs; (10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child; (11) The proximity of the residences of the parties; (12) Each party’s availability to care for the child or ability to make appropriate child-care arrangements; (13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party; (14) The history of drug or alcohol abuse of a party or member of a party’s household; (15) The mental and physical condition of a party or member of a party’s household; (16) Any other relevant factor.”
After careful consideration of the 16 factors in the statute, the Hearing Officer or Judge will issue an Order with a custody schedule that he or she believes is in the best interest of the children.
Part II: Divorce
As is the answer in custody cases, the answer in a divorce is also no; it is not presumed the marital assets will be divided equally in equitable distribution. Similar to custody, the Pennsylvania statute sets forth 11 factors for the fact-finder (which is a Hearing Officer and not a Judge in Chester County) to consider when deciding how to divide marital assets.
The factors (23 Pa. C.S. § 3502) include: “(1) The length of the marriage; (2) Any prior marriage of either party; (3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties; (4) The contribution by one party to the education, training or increased earning power of the other party; (5) The opportunity of each party for future acquisitions of capital assets and income; (6) The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits; (7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker; (8) The value of the property set apart to each party; (9) The standard of living of the parties established during the marriage; (10) The economic circumstances of each party at the time the division of property is to become effective; (10.1) The Federal, State and local tax ramifications associated with each asset to be divided, distributed or assigned, which ramifications need not be immediate and certain; (10.2) The expense of sale, transfer or liquidation associated with a particular asset, which expense need not be immediate and certain; (11) Whether the party will be serving as the custodian of any dependent minor children.”
Notably, factors (3), (5), (6), and (10) are all income driven. Thus, it is typically the case that the lesser earning spouse will request a larger percentage of the marital estate. Whether or not that request is granted depends the disparity between the parties’ incomes and the other 7 factors.
At Potts, Shoemaker & Grossman, LLC, our attorneys are prepared to assist you in finding the best approach for your individual situation. To schedule a confidential consultation, contact us at (610) 840-2626.