Divorce in Pennsylvania – No-fault vs Fault

By Susan Levy Eisenberg

It has been a trying time for many families living in pandemic-imposed seclusion. Couples who may have been able to work around their differences, or at least put them on the back burner, have had to face some stark realities about their relationships.  Many people over the past year have decided it is time to end their marriage. This trend has been particularly true with couples who have been married for a year or less.

If you are at the point in your marriage that you want to file for a divorce in Pennsylvania, here is an overview of what you need to know.

 

Types of no-fault divorce

The two most common types of divorce In Pennsylvania are no-fault with mutual consent and no-fault without consent. When possible, couples are encouraged to pursue a mutual consent agreement which can often be finalized within several months.  It requires that both parties agree that the marriage is irretrievably broken, and they must sign and submit an affidavit consenting to the divorce.

A no-fault divorce without consent can be granted if the couple has been separated for one year or more, with proof they’ve been living apart. They must also know where the other spouse resides to serve the affidavit.

Fault divorce

Fault divorce in Pennsylvania still exists, but this option is rarely used thanks to an update in 2016 to the Pennsylvania divorce code. It reduced the mandatory separation period from two years to one year for a no-fault divorce without consent.

A spouse no longer needs to claim grounds for divorce but must wait a year and prove they were living apart to file a no-fault divorce without consent.

While there are some rare circumstances in which a fault divorce may be appropriate, there are many financial and emotional challenges that have made it a less desirable option. The suing party must prove the fault – adultery, cruel and barbarous treatment, bigamy, desertion, or other indignities – which can be costly. There is no financial advantage to suing for a fault divorce; Pennsylvania law says judges cannot consider fault in dividing up a couple’s assets.

Division of assets

Other considerations include agreements on spousal support and the division of marital property. Unlike many states, Pennsylvania divides marital assets based on equitable distribution. This means property is divided based on a judge’s determination of what’s fair under the circumstances of each case. There are many factors that weigh into this, including:

  • each spouse’s role in the acquisition, preservation, depreciation, or appreciation of the marital property, including the contribution of a spouse as homemaker
  • the economic circumstances of each spouse at the time the division of property is to become effective
  • the spouses’ ages, health, income, and employability.

Couples who can agree on the division of assets without the court’s intervention will save time and money in the long run. 

What about child custody and support?

When children are involved, the couple must also agree to custody and support arrangements. Custody and child support are not a part of the divorce settlement and are often agreed to separately. This agreement can be done mutually between the parents, or they may ask the court to decide.

In either case, once the terms have been settled, a formal modification must be presented to the court to request any changes. 

Considering divorce?

A Pennsylvania resident who has lived in the state for at least six months can file for a no-fault divorce. The courts recommend you seek the advice and counsel of a lawyer versus opting for self-representation. Experienced family lawyers will always keep your best interest in mind and know how to work with the courts to get the best resolution for you and your family. Divorce can be a daunting process, especially when children are involved, so it is always best to seek the advice of a professional

If you are considering filing for divorce in Pennsylvania, give the team at Susan Levy Eisenberg, Attorney at Law a call today. As one of Bucks County’s and Montgomery County’s premier Matrimonial Law attorneys, Susan and her team have served the area with three decades of distinguished divorce negotiation and representation.