Divorce in Pennsylvania

No-fault versus fault-based divorce

April 29, 2011

By Mike Hinshaw

We discussed some Pensylvania state law in “Getting a divorce in Philadelpha,” so we’ll take up where we left off.

Two categories of no-fault proceedings

Pennsylvania has two types of no-fault divorce. According to a courts’ Web site:

1. If both parties agree to the divorce, they can obtain a no-fault divorce. After one party files for the divorce and 90 days has passed after the complaint is served on the other spouse, each party may file an Affidavit of Consent to divorce. You may also work out any property issues you have by agreeing on how you will deal with marital property in a Property Settlement Agreement. The court rules require you to file a series of legal documents to complete the divorce. This is the fastest way to divorce in Pennsylvania, but it requires the cooperation of both parties.

2. Unilateral (also known as “irretrievable breakdown”) no-fault divorce is available if one of the spouses will not consent to the divorce but the parties have been living separate and apart (defined by the statute as “complete cessation of any and all cohabitation, whether living in the same residence or not”) for at least 2 years and the marriage is irretrievably broken. You may file for the divorce before you have lived separate and apart for the 2 year waiting period but you cannot get the divorce until the 2 year period is over. There may be disagreement between you and your spouse about when you started living separate and apart. It is important to try to get some legal advice on this issue.

Sharing a home–separately

Concerning the second point, it may seem like a stretch to share a home but keep to separate quarters for two years–while waiting on a marriage to end– but sometimes people simply can’t afford to maintain separate households. Or, perhaps a medical condition complicates matters, especially if children are involved. At any rate, it’s a helpful provision for the law to recognize such needs.

Grounds for fault-based proceedings

According to DivorceNet.com, the grounds for a fault-based divorce in Pennsylvania are:

The court may grant a divorce to the innocent and injured spouse whenever it is judged that the other spouse has:

1. Committed willful and malicious desertion, and absence from the habitation of the injured and innocent spouse, without a reasonable cause, for the period of one or more years.
2. Committed adultery.
3. By cruel and barbarous treatment, endangered the life or health of the injured and innocent spouse.
4. Knowingly entered into a bigamous marriage while a former marriage is still subsisting.
5. Been sentenced to imprisonment for a term of two or more years upon conviction of having committed a crime.
6. Offered such indignities to the innocent and injured spouse as to render that spouse’s condition intolerable and life burdensome.

A fault-based divorce is likely to be highly emotional and contentious, making the retention of a skilled, capable attorney almost certainly a necessity. Furthermore, courts and other experts often recommend hiring an attorney even for uncontested divorces, at least for the Petitioner, in order to ensure everything is done correctly. Many good attorneys offer lower rates for uncontested cases.
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