Pennsylvania Divorce Law Offers Several Options, So File Wisely

By the time prospective clients contemplating a divorce reach my office, most simply want their marriage to be over as quickly and efficiently as possible. Yet just as marriage isn't meant to be entered into lightly, neither is divorce.

In Pennsylvania, the law provides several options, each with its own set of advantages and disadvantages when it comes to legally untangling a failed marriage.

As an attorney at Scaringi Law, where I focus my practice on family law, including divorce and child custody, I find many of my clients are surprised at the various options.

Whose fault is it, anyway?

Pennsylvania law provides two main types of grounds for filing a divorce. The first and older type dates to when divorce was viewed as socially unacceptable, and specific reasons for divorce were needed to be proven in court.

In other words, the divorce had to be someone's fault, and that fault needed to be legally established before a judge.

While society has changed, the fault-grounds divorce filing remains on Pennsylvania's legal books. Yet in my experience, it's increasingly rare - and for good reason.

First, the fault of one party must be proven. The proceedings can quickly become ugly because fingers are being pointed and blame assigned. Not only must one party's fault be clearly established, the other party must be shown as an innocent and injured victim. When it comes to a crumbling marriage, these factors are disadvantages to a smooth and speedy divorce.

Legal grounds for a fault divorce filing include desertion, adultery, cruel and barbarous treatment, bigamy, incarceration and indignities. You can see why attempting to prove any of these grounds in court would only alienate and embitter two parties seeking to go their separate ways.

Some things are simply better left unsaid, particularly when two parties are attempting to negotiate a settlement over splitting property and sharing custody, along with getting divorced.

Fault divorces can serve to poison the well of an already moribund marriage. They are best avoided when seeking a civilized dissolution to a failing marriage.

It just didn't work out

Clearly, the no-fault divorce option is the way to go in Pennsylvania. But the law provides for two distinct types of no-fault divorces. Both have their pluses and minuses.

The first type of no-fault divorce is called a mutual consent filing. Often, I see my clients' eyes light up as I explain the potential for a speedy 90-day timetable to go from filing the divorce compliant to receiving a divorce decree, all without so much as a hearing and only minimal paperwork. At the end of the 90-day period the parties can file affidavits in court declaring agreement with the impending divorce decree.

Unfortunately, a mutual consent filing can easily be derailed if either party suddenly withholds consent. This occurs more often than one would think: One party simply changes his or her mind at the end of the 90 days.

Now what?

Solution for an 'irretrievably broken' marriage

I quickly acquaint all of my divorce clients with two words: irretrievable breakdown. Unlike mutual consent, a divorce under an irretrievable breakdown filing doesn't have to be agreed to by both parties. Yet, unlike a fault divorce, the filing spouse needn't cast any blame, either.

Rather, the much lower burden is to simply show that the two parties are no longer living as a couple or holding themselves out to the public as married. Once this is proven, the divorce eventually will be decreed, even if one party is dragging his or her feet.

The downside is that an irretrievable breakdown divorce filing takes longer - a full two years.

After two years of "living separate and apart," an affidavit for the divorce decree is filed and the other party is given a chance to respond.

Incidentally, "separate and apart'' doesn't have to mean living in different places. A couple can be in the same house and still have the grounds they need for divorce if they can show they are maintaining separate finances, living separated in their public personas, going separate ways in their social lives and announcing the separation to family and friends.

A judge who remains unconvinced that the marriage is irretrievably broken can order counseling and a cooling-off period of up to 120 days. At the end of that time, even if one party wants to stay married, a divorce decree maybe issued .

The bottom line of divorce law is that no one should be made to suffer in a bad marriage that cannot be saved. Pennsylvania law, coupled with a good family law attorney, gives every suffering spouse a chance to begin life anew.

Should you be one such dispirited spouse, perhaps we should talk.