People often wonder if one party or the other needs to be at fault to obtain a divorce. In short, the answer is no – you don’t have to prove who is at fault in order to obtain a divorce.  Pennsylvania law provides two separate grounds for a no-fault divorce: you can obtain a divorce with the consent of your spouse under Section 3301(c)(1) of the Divorce Code, or after you have been separated for a set period of time pursuant to Section 3301(d) of the Divorce Code.
 
In a 3301(c)(1) divorce, both parties agree that the divorce should move forward. After the initial divorce complaint is filed by one party and the other party has accepted service, there is a waiting period of 90 days. After that, the parties can sign waivers and affidavits, which will be filed with the court.  Soon after that, if there are no issues of marital property or support, the court will issue a final divorce decree.
 
In a 3301(d) divorce, under current law the parties must be separated for at least one year in order to obtain a divorce. Therefore, it is necessary to confirm the date of separation to begin a 3301(d) divorce. The separation date is when the parties began living "separate and apart," which means they are either living in separate residences, or living separate lives within the same residence.  After the required time has passed, either party may file a divorce complaint.
 
One important thing to know about a 3301(d) divorce it that the other party does not have to agree to the divorce.  However, if during the process the other party decides not to oppose the divorce, they can agree to sign certain documents in order to obtain the divorce decree sooner.
 
There are several ways to streamline the divorce process so that it will not be necessary for either party to appear in court.  For example, if the parties do not have marital property or any custody, child support, or spousal support claims, they do not have to appear in court during the divorce process.  We also work with clients who must resolve property, custody, or support matters, but decide to address how they would like to handle these matters in a property settlement agreement.  A trained mediator can help the parties develop an agreement and our office will finalize the property settlement agreement for incorporation into the final divorce decree.
　
Should you try to file your divorce papers yourself? Without a good lawyer, you might be missing legal issues that need to be resolved as part of the divorce action.  When you meet with us, we will prepare and file all of the necessary paperwork and handle all fees and deadlines, so you will have a clear understanding of how the divorce process will work for you.
 
We will do the following:
 

• Discuss the divorce grounds and find the best approach to your divorce.
• Meet with you to review your marriage license and other relevant documents.
• Have you review and sign all paperwork.
• File all documents with Family Court in accordance with the timeframes and fees.
• Keep you informed of the progress of the divorce action.
• Represent you at all court appearances, if necessary, up to the issuance of the final divorce decree.

 
Still have questions?  Call Cynthia G. Mason, Esq. at 215-242-9000

The preliminary hearing is a crucial step in a criminal case in Pennsylvania.  Before the preliminary hearing, the police and district attorney are in control of the case.  They decide whether and when to file charges, and also which charges to file.  The preliminary hearing is the first chance to hear more about the case in open court and begin to mount a defense.  

As a general rule, I don’t advise clients to waive the preliminary hearing.  Even if you know the case will be held over for court, the preliminary hearing is an opportunity to learn more about the case and specifically about the witness or witnesses.  For example, is a witness’s testimony consistent with the allegations in the affidavit of probable cause?  Does a witness appear honest and trustworthy on the stand, or do they appear to be telling something less than the whole truth?  And is the prosecution willing to concede certain aspects of the case that strengthen your defense?  Consider a case where a gun is found under the seat in a car, and the driver is charged with Violation of the Uniform Firearms Act (VUFA) offenses.  I might ask the arresting officer questions such as:

• The car was not registered to the driver, correct?
  
  
• You don’t know how long the driver had been driving it that day.
  
  
• You don’t know who had been driving it before this driver.
  
  
• You never saw the driver reach under the seat.
  
  
• You never saw the gun in the driver’s hand.
  
  
• You never saw the gun in the driver’s waistband, in his pocket, or on his hip.
  
  
• Was the gun submitted for fingerprint analysis?
  
  
• Was the gun submitted for DNA analysis?
  
  

These are basic questions to give you an idea of what I’m thinking about in a preliminary hearing.  Since the issue is possession of the firearm, that’s where my focus will be - casting doubt on actual or constructive possession or knowledge of the firearm.  Depending on the facts, I might ask other questions as well.  
 
There are certain limited circumstances where you might consider waiving a preliminary hearing.  For example, the district attorney might agree to withdraw some charges in exchange for a waiver of the preliminary hearing.  Depending on the charges and the strength of your case, that’s an offer worth considering.  In addition, if you plan to apply for Accelerated Rehabilitative Disposition (ARD) in one of the counties outside Philadelphia, the standard procedure is to waive the preliminary hearing in exchange for ARD consideration. 

Should you waive the preliminary hearing?  It’s an important decision, and you shouldn’t make it without an experienced lawyer on your side.    

“Can I get ARD?”  It’s a question that I hear often in Philadelphia.  If you’re charged with a crime and you have an otherwise clean record, you may qualify for ARD.  ARD stands for Accelerated Rehabilitative Disposition.  As its name suggests, the primary purpose of the program is rehabilitation - it offers you a fresh start after completion of a probationary program.  If you successfully complete ARD, the charges are dismissed and the case may qualify for automatic expungement.  

ARD is available in summary matters, as well as many misdemeanor and some felony cases.    The way it works right now in Philadelphia (April 2020), people facing misdemeanor charges (those listed for a Municipal Court trial) can apply for ARD right away.  If there are felony charges, the case first must go through a preliminary hearing before an ARD application.  This is a different procedure than in some of the counties around Philadelphia - in the counties, you’ll often be asked to waive the preliminary hearing in exchange for ARD consideration.  

If accepted into ARD, you’ll have to pay the costs of the program, which are generally under $500.00 but could be more in certain circumstances.  You’ll also have to pay restitution, if any.  In most cases, the court will impose a term of probation, but there will be no guilty plea and no conviction.  If you’re concerned about probation, your attorney can request that you report by phone if there’s a good reason for it - for example, if you can show you’re working during the time you would otherwise have to report.    

If you successfully complete ARD, prosecution is withdrawn and the charges are dismissed.  Charges will be expunged automatically within a few months of successful completion.  (See Pa. R.Crim.P. 320).  However, automatic expungement will not happen unless all court costs and other charges are paid in full.
 
What happens if your ARD application is denied?  Your attorney can request reconsideration.  It’s not considered an appeal per se, but your attorney should learn as much as possible about your circumstances and put together a written submission with reasons why your case should be accepted.  

Is ARD worth it?  Most of the time, it's definitely worth it, even with the costs and term of probation.  That’s because there are great benefits to having a clean record as opposed to even one criminal conviction.  But what if you can beat the case - shouldn’t you fight it?  That’s a situation to discuss with your attorney, after weighing all the risks and benefits of each option.  

You can find more information on ARD under chapter three of the Pennsylvania Rules of Criminal Procedure, Rules 300 to 320.  Call me at 215-242-9000, and we’ll set up a time to discuss whether ARD will work for you.

Almost all residential landlord-tenant cases are heard initially in the Philadelphia Municipal Court, or outside Philadelphia in the local Magisterial District Court.  After trial, both landlord and tenant have the right to a de novo appeal to the Court of Common Pleas.  “De novo” is a Latin term meaning “of new” or “anew,” which means that the case starts from the beginning with no consideration of the outcome in the first proceeding.  However, there is an important exception to the de novo rule: if the trial judge found in favor of the landlord, the landlord retains a judgment of possession and can proceed with eviction while the appeal is pending. 

If the landlord has a judgment for possession, the tenant must apply for a stay of eviction, called a supersedeas, in order to stop the eviction while the appeal is underway.  Supersedeas is another Latin term meaning “you shall desist.”  In Philadelphia, supersedeas is governed by Local Rule 1008.  In order to obtain a stay, the tenant must post the amount of rent actually in arrears at the time of appeal or the equivalent of three months’ rent, whichever is less.  Most tenants are unable to meet this requirement: if they were able to pay, they most likely would have done so before the original proceeding.

But once again, there is an exception: Local Rule 1008(d) allows low-income tenants to obtain a stay of eviction if they pay just one-third of the monthly rent into escrow with the court at the time they file an appeal.  Read this carefully: the rule requires just one-third (⅓) of one month’s rent, not one-third of the total amount due.  The tenant must then deposit two-thirds (⅔) of the monthly rent within 20 days of filing the appeal, and an additional deposit of one month’s rent each 30 days after filing the appeal. 

Let’s consider an example of how this works.  Say a landlord obtains judgment for possession against a tenant who owes three months of rent.  The rent is $1,000 per month; to keep this simple, we’ll eliminate costs and fees and say the judgment amount is an even $3,000.  Under the regular rule, the tenant must post the entire $3,000.00 to obtain a stay.  But under subsection (d), the tenant can obtain a stay by paying only $333 - leaving the landlord $2,667 short! 

The rules are similar in the counties surrounding Philadelphia, although in my experience the county courts are somewhat more strict in granting IFP (in forma pauperis, or low-income) status.  Tenants often make procedural errors with supersedeas payments, so it’s important to check the docket and ensure strict compliance with all deadlines.  If the tenant pays late, the landlord can ask the court to lift the stay and proceed with eviction - but it won’t happen automatically.  That's one reason it's a good idea to retain an experienced attorney to resolve the situation.