By Lee A. Schwartz, Attorney at Law
Published: July 17, 2004
In Pennsylvania, there are three divorce options used by attorneys and their clients to get divorced. Two are No-fault types of divorce and the third is “Fault” method of getting divorced.
Prior to 1980, Pennsylvania was a “fault” state. As such, in order to get divorced, one spouse had to prove that the other spouse was “at fault” for the divorce and that the spouse who wanted the divorce was not at fault, and was, in fact, “innocent and injured” according to the statute. From a practical point of view, how often, in a marriage, is it that one party is completely and solely at fault and the other party has absolutely no fault? Rarely. The problem was that husband and wife would file for divorce, go into court and hurl all sorts of insults and blame on each other. If the court found that both parties were at fault, the court would deny the request for a divorced and these parties, who just insulted, slandered and embarrassed each other in court by revealing the deepest, darkest secrets of their marriage, would be forced to remain married to one another. How practical was that?
In 1980, the Pennsylvania legislature passed a “no-fault” statute, with the hope of rectifying this horrendous system.
Divorce is accomplished in one of three ways:
- FAULT: Fault remains “on the books” in Pennsylvania. To prove a fault divorce, one must prove on of the statutorily prescribed causes, such as abandonment, extramarital affair, inability to have sexual relations, physical abuse and so on. Again, one party must be at fault and the other party “innocent and injured”. Since it takes “two to tango” in most marriage breakups, this system continues to be riddled with flaws.
CONSENSUAL NO-FAULT: In a consensual no-fault divorce, both parties agree to be divorced. A divorce complaint is filed and served. There is a 90 day cooling off period (intended by the legislature to give the parties time to “reflect’ and be sure that the decision to be divorced is not made in haste) during which time nothing can be filed with regard to the divorce. Once the 90 days have passed, the court will divorce you, so long (in most cases) as the economic issues of the divorce have been agreed to.
NONCONSENSUAL NO-FAULT: In a nonconsensual no-fault divorce, one party will not consent to be divorced. In that case, there is a two year waiting period (from the date of separation) before the court will divorce a party. Because of that length of time, some parties will attempt to do a fault divorce (where there is no waiting period) in order to be divorced faster. Under the nonconsensual no-fault method, once the two years have passed from the date of separation, the court will grant a party a divorce even if the other party refuses to consent.