Tag Archive for: irretrievable breakdown

If Your Spouse Won’t Agree to a Divorce in Pennsylvania

Pennsylvania is unusual among states in that it still has both no-fault and fault divorce options on the books. The many issues regarding divorce in PA are defined in Pennsylvania Statutes Title 23 Pa.C.S.A. Domestic Relations, Part IV.

Uncontested Divorce

There are two no-fault, or uncontested, options: Mutual Consent and Irretrievable Breakdown.

Mutual Consent: In Mutual Consent Divorce, both spouses file affidavits requesting a divorce. There is a 90-day minimum waiting period, and then if they still both agree, the divorce can be finalized.

Irretrievable Breakdown: When a marriage has severely deteriorated, under the “irretrievably broken” grounds for divorce, spouses must live “separate and apart for a period of at least one year.” After separation, only one party needs to file an affidavit, indicating the date at which the separation began and that the marriage is “irretrievably broken.” The affidavit must be filed in court and served to the spouse, who has 40 days to contest or to argue for economic relief. If the served spouse does not respond in time, the divorce can be finalized by only one party.

Contested Divorce

Pennsylvania Law cannot force a spouse to sign divorce papers. If a spouse contests the divorce or denies separation, then the other spouse may be forced to file a “fault” divorce. The grounds under which such a claim can be made in Pennsylvania are defined in 23 Pa.C.S. § 3301(a) and (b):

1.       Willful and malicious desertion

2.       Adultery

3.       Cruel and barbarous treatment, endangering life or health of injured and innocent spouse

4.       Bigamy

5.       Imprisonment for more than 2 years

6.       Intolerable and burdensome indignities to spouse

7.       Institutionalization in a mental institution at least 18 months prior to and

expected subsequent to filing

If your spouse will not leave the family home and thus initiate the separation, under 23 Pa.C.S. § 3502(c)  you can file for exclusive possession of the family home.

Talk to a trusted advisor who is an expert in divorce and family law to help determine what steps you need to take. We help people every day to get through this difficult process and start fresh. Call us for a consultation.


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Mandatory Waiting Period for Divorce

Many states require some waiting period between when a divorce complaint is filed and when a divorce will be granted. In Pennsylvania, a no-fault divorce may be granted after a waiting period of 90 days provided both parties consent to the divorce at the conclusion of the waiting period. This waiting period is often referred to as a cooling-off period. It is arguably utilized in many states to give the parties an opportunity to reflect on the severity of the decision to get a divorce and/or seek marital counseling to see if the relationship can be saved. At this point, almost half of the states have some waiting period between when you file and when you can be divorced.

It is unclear if there is any correlation between longer waiting periods and fewer divorces. New Jersey has one of the longer waiting periods for a no-fault divorce at 18 months and also has one of the lowest divorce rates in the country. On the other hand, Arkansas also imposes an 18-month waiting period and has one of the highest divorce rates. Perhaps the key to determining the impact of the waiting periods would be a study into how many couples do end up reconciling during the waiting period if reconciliation is the ultimate goal behind the divorce laws. Pennsylvania does specifically indicate its policy is to “encourage and effect reconciliation and settlement of differences between spouses” as the “protection and preservation of the family is of paramount concern.” 23 Pa. C.S. 3102.

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No Fault Divorce

The divorce rate reached an all time high in the 1970’s due to the introduction of no-fault divorce. A no-fault divorce meant that the parties could get a divorce without having to prove any wrong-doing in court. Essentially, all the parties have to do for a no-fault divorce is indicate the marriage is over. Prior to the influx of no-fault divorce, parties had to prove that the requirements for a fault divorce were met. Fault grounds for divorce in Pennsylvania include desertion, adultery, cruel and barbarous treatment, bigamy, imprisonment, and indignities. The majority of divorces will go through on the basis of no-fault since it is easier to litigate and often times there is no benefit in the outcome of the divorce to pursuing a fault ground for a divorce.

To move forward with a no-fault divorce in Pennsylvania, the parties need only allege an “irretrievable breakdown of the marriage” and either consent to the divorce after a 90-day period or establish 2-year separation. A no-fault divorce can also be obtained if one of the spouses is institutionalized for a period of 18 months provided they will likely still be institutionalized 18 months following the commencement of the divorce. No-fault divorce became available in Pennsylvania in 1980 when the Divorce Code was revised. Originally, a separation period of three years was required but that has since been reduced to the two year separation period currently required.

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