Note: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation.
The decision to terminate your marital relationship should only be made after the most considered and sincere reflection by you. Once you have determined that you wish to seek a divorce or defend against such an action, you need to know the mechanics of the process and the potential consequences. Indeed, knowledge of those consequences will, as a practical matter, influence the approach you take to resolving your difficulties. The legal path to be followed to obtain a divorce will ordinarily be a topic of your initial consultation with your lawyer.
From representation in divorce matters I offer legal advice directed to your specific situation and needs. Contact my office online or call 866-942-0074 to schedule a complimentary 30 minute consultation to discuss your concerns today. My office, located near the Allegheny Valley exit of the Pennsylvania Turnpike and the Oakmont and Harmarville exit of the Route 28 Expressway, provides a convenient environment in which to discuss your family law needs.
How do I start my divorce action?
The person who desires the divorce files a divorce complaint with the Court. Divorce complaints follow a standard format. Basic information about the parties such as address, date and place of marriage, etc. is included. The complaint must also state the reason that the divorce is requested. (See fault and no-fault divorce below). The complaint may also include requests for economic relief available under the Pennsylvania Divorce Code and, under certain circumstances, for Custody and visitation rights as to child(ren) and Child support.
What is a No-Fault Divorce?
No-fault divorce is a concept introduced in Pennsylvania law in 1980. A no-fault divorce is a termination of the marriage that is not dependent on proof of marital misconduct by one of the parties. A no-fault divorce is granted when it is determined that the marriage is “irretrievably broken”. An irretrievable breakdown is an important legal term that means an estrangement due to marital difficulties with no reasonable prospect of reconciliation.
There are two types of no-fault divorce that can be granted.
Theses are often referred to as:
1. Mutual consent no-fault divorce; and
2. Unilateral no-fault divorce.
How can I get a Mutual Consent No-Fault Divorce?
A complaint is filed with the Court alleging that the marriage is irretrievably broken. After expiration of a mandatory 90 day waiting period, which starts with the date of service of the complaint on the other party, the Court can enter a decree divorcing the parties after both parties file an Affidavit of Consent, which acknowledges that the waiting period has expired and that the party signing the affidavit agrees that the marriage is irretrievably broken. You may also be requested to sign a paper that waives the need to receive notice of the intention to have the Court enter the decree.
Can my spouse force me to file an affidavit of consent to the entry of a divorce decree?
No. However, if you are the Plaintiff (the person who filed the complaint), have alleged that the marriage is irretrievably broken and are receiving temporary alimony, the Court may dismiss your action or terminate your right to receive temporary alimony if you choose not to file an Affidavit of Consent. No one, however, can make your actually sign an Affidavit of Consent if you choose not to do so.
What do I have to do to get a Unilateral No-Fault Divorce?
For any of a number of reasons, rational or irrational, one party to a divorce action may refuse to consent to the entry of a mutual consent no-fault divorce. In that case, one person alone can still obtain a no-fault divorce by alleging that the marriage is irretrievably broken.
Additionally, that person must also file a separate affidavit alleging the irretrievable breakdown and that the parties have lived separate and apart for a period of at least 2 years. If the other party admits or does not deny the allegations, a divorce decree can be granted. If the allegations are denied, the Court will schedule a hearing on the disputed issues.
Do we have to be separated for at least 2 years before the Unilateral No-Fault Divorce complaint can be filed?
No. the complaint can be filed at any time. But, the affidavit that must be filed to obtain this type of no-fault divorce cannot be filed until you have been separated for at least 2 years.
Can we be living separate and apart if we still reside in the same house?
Yes. Our legislators have recognized circumstances such as limited financial ability to pay the expenses of two separate households that may make it impossible for married persons to occupy separate residences. Therefore, the concept of “separate and apart” is defined as a complete cessation of any and all cohabitation, whether living in the same residence or not. Of course, proving that any and all cohabitation has ceased while the parties continue to live in the same house can be difficult and is frequently subject to dispute.
What is a Fault-Divorce?
A fault divorce is granted after it has been proved that the defendant engaged in marital misconduct that falls within one of six recognized categories which are:
1. Willful and malicious desertion without reasonable cause for one or more years;
3. Endangering the life or health of the innocent spouse by cruel and barbarous treatment;
4. Knowingly entering into a bigamous marriage;
5. Being sentenced to imprisonment for 2 or more years for committing a crime;
6. Having offered such indignities to the person of the innocent spouse as to render his/her condition intolerable and life burdensome.
Since enactment of the Pennsylvania Divorce Code in 1980, which introduced the concept of no-fault divorce, it is not often that a person proceeds with a fault divorce. The overwhelming number of divorces granted today are on the basis of no-fault divorce.
How long must we have lived in Pennsylvania in order to obtain a divorce in this state?
Either you or your spouse must have been a bona fide resident (actually living in Pennsylvania with the intent to remain there indefinitely or permanently) for a period of at least 6 months immediately before the commencement of the divorce action.
Did your marriage have to take place in Pennsylvania in order to file for a divorce in Pennsylvania?
Where do I file for a divorce?
A complaint for divorce can be filed in the following counties:
1. In the county in which either the Plaintiff or Defendant reside; or
2. In a county in which the parties have agreed that the action may be filed. But that agreement must be evidenced by:
a. A writing that must be attached to the divorce complaint, or
b. By the parties participating in the proceeding once the complaint is filed.
Can I ask for other relief in addition to a divorce?
Yes. Examples of additional relief typically requested are:
3. Alimony pendente lite (alimony paid while the action is pending);
5. Child support.
6. Counsel fees, costs and expenses; and
7. Continuation of health and life insurance policies and beneficiary designations.
This relief is either requested by the Plaintiff as part of the divorce complaint or by either party in a separate pleading filed with the Court after the divorce action has been commenced but before a final divorce decree is issued.
Will I forfeit any of my rights if I do not file a formal legal document with the Court?
Yes. If no request has been made for equitable distribution of marital assets and liabilities, alimony, counsel fees, costs or expenses before entry of a final decree divorcing the parties, the right to claim such relief is forfeited.
Does it matter who files for the divorce?
Generally, no. Your economic rights are not determined by who files for divorce. But, keep in mind that if you file for the divorce, your spouse may have your right to receive temporary alimony suspended or your divorce action terminated if you do not promptly proceed with your claim.
What is a Bifurcated Divorce?
A bifurcated divorce is a case in which the divorce decree is granted now and the economic claims are dealt with at a later time. The court can enter a bifurcated decree with consent of the parties or if the Court finds that grounds for divorce are established, compelling circumstances exist, and economic protections have been made for the other party.
My spouse has filed for a divorce, but I am not sure that our marriage is irretrievably broken. Can I compel my spouse to go to marriage counseling?
Yes. If the ground for divorce is either the fault ground of indignities to the person or the no-fault ground of irretrievable breakdown of the marriage, either party can obtain a Court Order requiring the other party to attend up to a maximum of three (3) counseling sessions.
Does Pennsylvania recognize common law marriages?
Pennsylvania no longer recognizes common law marriage. Any such purported marriage entered after January 1, 2005 is invalid. Such marriages entered before January 1, 2005 do remain valid.
Do I have to go through the same divorce procedures if my marriage is a common law marriage?
Can I obtain a divorce if my spouse is insane or suffers from a serious mental disorder?
Yes. You may still bring a divorce action under any applicable fault or no-fault basis.
If my spouse dies before the divorce decree is entered, how does my case proceed?
If the divorce decree has been entered before a party’s death or if grounds for divorce have been established as set forth in the statute, then the Family Court will continue to address the economic claims raised by the parties.
How long does it take to obtain my divorce?
This question cannot be readily answered by your attorney. The circumstances of each case are different, just as no two persons’ fingerprints are the same. The issues involved vary, as do the emotional and financial situations of the parties. One person may find it necessary to litigate issues when another would be content to stipulate. If you feel your case is taking an extraordinary amount of time to complete, raise this question with your lawyer. He or she will most likely be able to explain the obstacles that have already been overcome and those that remain.
Contact my office to schedule your complimentary 30 minute consultation during which you will learn how I can help you now.