DIVORCE AND SEPARATION
A divorce is the termination of a marriage between spouses. In Pennsylvania, a divorce can be filed as a “fault” based divorce, or a “no fault” divorce. The filing party has the obligation of proving there are grounds sufficient to grant the divorce, unless both parties are in agreement with the divorce.
If both parties are in agreement with the dissolution of marriage, the divorce can be granted after a period of ninety days have elapsed following the service of the Divorce Complaint on the non-filing party. The court will likely require all economic issues be resolved prior to the entry of the Divorce Decree, absent extenuating circumstances.
If both parties are not in agreement with the divorce, the filing party will be required to wait until the parties have been living separate and apart for a period of at least two years, prior to moving forward with the divorce process. Once the two year separation occurs, a divorce may be granted if the Court determines that the marriage is irretrievably broken, (or fault grounds have been established) and that all of the economic issues have been resolved.
Fault Based Divorce:
In order to obtain a “fault based” divorce, the person raising the allegation must prove that he or she is the “innocent and injured” spouse and that the misconduct of the other spouse has caused the breakdown of the marriage.
Reasons for a fault-based divorce in Pennsylvania include the following:
- Willful and malicious desertion and absence from the marital home without a reasonable cause for a period of one or more years,
- Extreme cruelty, including any physical or mental cruelty that endangers your safety or health, which renders continued cohabitation improper or unreasonable (also known as cruel and barbarous treatment);
- Knowingly entering into a bigamous marriage;
- Incarceration for a period of two years;
- Indignities that have been imposed on the innocent spouse so as to render that spouses condition intolerable and life unduly burdensome;
- Insanity or serious mental disorder which has resulted in confinement in a mental institution for at least 18 months immediately before the filing of the complaint, and where there is no reasonable prospect that the spouse will be discharged from inpatient care during the 18 months subsequent to the commencement of the action.
No Fault Divorce:
No fault divorce may be granted where it is alleged the marriage is irretrievably broken and a period of ninety days have elapsed from the date of the commencement of an action and an affidavit has been filed by each of the parties evidencing his or her consent to the divorce. A no fault divorce must allege the marriage is irretrievably broken. In the alternative, the court may enter a divorce decree if after a notice and hearing, the court has determined the parties have lived separate and apart for a period of at least two years and the marriage is irretrievably broken.
Pennsylvania does not have a legal separation process. If the date of separation is in dispute, the court will often look to the date the parties began residing in separate residences, or in the alternative, the date a Divorce Complaint is filed. It is possible to be considered separated while continuing to reside in the same residence however the continued residence makes the proof of separation more difficult to establish. The date of separation is important when calculating the two year separation as well as the value of the marital estate.
Marital property includes all property acquired by either spouse during the marriage with certain exceptions such as gifts and inheritances, regardless of whose name the property is held. Additionally, an increase in value of non marital/premarital property or increases in value of gifts or inheritances may also be considered marital property. It is possible to make a gift to the marriage by transferring a non-marital asset into joint names.
During the pendency of a divorce action, the court may award one or both of the parties the right to reside in the marital residence, upon good cause.
Divorce & Separation Attorneys: