In Pennsylvania, individuals who want to file for divorce may have the option of filing “fault” or “no-fault” divorce.
FAULT DIVORCE – DEFINED
As the name suggests, fault divorces are available to those married individuals who can prove very specific reasons why they should be divorced. These reasons relate to the other spouse’s conduct that is considered so bad that the Court will grant the “innocent and injured spouse” a divorce. This type of conduct includes the following:
- Desertion for one (1) year or more
- Cruel treatment that endangers the life or health of the other spouse
- Imprisonment for more than 2 years
- Other actions making life intolerable for the innocent spouse
NO-FAULT DIVORCE – DEFINED
A no-fault divorce allows couples to achieve a divorce without alleging that either spouse is specifically at fault for the breakdown of the marriage. Usually, a no-fault divorce is a divorce by mutual consent, meaning both spouses agree that the marriage is irretrievably broken. This type of divorce requires a 90-day waiting period before the Court will grant the divorce. Otherwise, when a party does not consent, the Court will grant a no-fault divorce if the spouses continuously live separately and apart for at least one (1) year.
PROVING FAULT DIVORCE GROUNDS
If a spouse wants to consider a fault divorce, there are things he or she should consider. For starters, an individual must determine whether the other spouse’s conduct rises to the level warranting a fault divorce.
- Desertion. Courts recognize both actual desertion and constructive desertion. An actual abandonment of marital cohabitation, willfully persisting for at least one year may give rise to a divorce. For example, if one spouse moves to Florida and refuses to return to Pennsylvania, the other spouse may have a case for desertion. However, the Court may not grant the divorce if it is determined that there is a voluntary separation or a mere absence. Courts will weigh the evidence carefully. Also, if there is a temporary cohabitation during the one year time period, it may defeat the duration requirement. In one case, the Court held that a husband’s separation from his wife under a Protection From Abuse Order that barred husband from the marital home for one year, was enough to establish a willful and malicious desertion.
- Adultery. Adultery is voluntary sexual intercourse by a married person with someone other than his or her spouse. Direct proof is not required, but the innocent spouse must prove, by clear and convincing evidence, the other spouse’s “opportunity and inclination”. Acts of adultery cannot be established solely by confession of the guilty spouse. The innocent spouse must also have corroborating evidence.
- Cruel and Barbarous Treatment. The innocent spouse need only prove one single act of threatened violence or harm. This single act, however, must be a serious threat, it must be intentional, and it cannot be the product of provocation. Case law has established that “cruel and barbarous” treatment implies a merciless and savage disposition leading to conduct amounting to actual personal violence or creating a reasonable apprehension thereof, thus rendering further cohabitation dangerous to one’s physical safety.
- Bigamy. If a spouse intentionally enters into a second marriage during an already existing marriage, and the other spouse is unaware of this other marriage, the innocent spouse may prevail on fault grounds.
- Conviction of Crime/Imprisonment of 2 years. This seems pretty straightforward; however, there are defenses to this fault ground. For example, a court held that where a wife who knew of husband’s criminal activities, permitted him to hide stolen money in their home, wrapped stolen money into rolls, and helped spend the money, was not an “innocent and injured spouse” and therefore could not proceed with a divorce on fault grounds.
- Indignities. This is the most frequently alleged fault grounds. It is a catch-all category used by spouses who are in intolerable marriages. A spouse must generally prove that the other spouse’s conduct constitutes a course of behavior which is humiliating and degrading, inconsistent with the injured individual’s position as husband or wife, making that condition intolerable and life a burden to him or her. If a spouse commits one single act of an indignity, it will not be enough. The injured or innocent spouse must prove a continuing course of behavior. Such behavior may include vulgarity, unmerited reproach, manifest disdain, abusive language, malignant ridicule, etc. Alcohol abuse alone is not considered an indignity. Petty quarrels and nagging also do not constitute indignities.
Even though a spouse may be able to prove fault grounds for divorce, a no-fault divorce should always be considered. This may seem confusing, but there are practical and strategic reasons why divorce lawyers sometimes recommend pursuing a no-fault divorce even if fault-based grounds exist.
REASONS TO CHOOSE NO-FAULT OVER FAULT
Pennsylvania divorce lawyers will agree that fault divorces are generally harder and more expensive. Fault divorces are contentious, acrimonious, and lengthier than no-fault divorces since fault must be proven, meaning that hearings must be held before a Judge and evidence must be submitted. To the contrary, the legal process for no-fault divorces is easy and quick to complete, typically involving minimal court hearings and can be primarily achieved through basic court filings. Furthermore, Pennsylvania law does not consider fault-based reasons when distributing marital property. For example, the fact that your spouse cheated on you makes no difference in the eyes of the law when property is equitably distributed as part of the divorce. Finally, while your spouse may have committed fault-based reasons for the divorce, pursuing a fault divorce requires that you both relive these events through court filings and hearings. This whole process may be emotional and humiliating for both of you, a process that may easily be avoided.
These reasons aside, there are still times when fault-based divorces may be the right choice. There are no waiting periods for fault divorce, as opposed to no-fault divorces which require at least a 90 day waiting period for a mutual consent divorce and a one (1) year period where both spouses are living apart if there is an irretrievable breakdown of the marriage (potentially with additional waiting periods for reconciliation). The lack of a waiting period is imperative if there are issues dealing with domestic violence or physical abuse. Additionally, fault-based grounds for divorce are taken into consideration by the Court in awarding, or not awarding, spousal support, APL or Alimony, as well as when determining child custody and visitation schedules.
THE MARTIN LAW FIRM, P.C. – Montgomery County, PA Divorce Lawyers
Any divorce situation requires the expertise and advice of an experienced PA divorce lawyer. Even if a no-fault divorce sounds like the easier option, a fault-based divorce may be the better route for you. There are still significant legal steps that must be taken to properly file the divorce complaint in fault and no-fault divorces alike, as well as important topics which must be discussed, e.g. child custody and property rights. Contact a divorce lawyer at The Martin Law Firm, P.C. at (215) 646-3980.