ChesterNewMatterSummer2017 - 15

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 depending 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 their
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:
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.
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
pboyer@macelree.com.

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