Family Matters

What is a No-Fault Divorce?

There are various legal types of divorce in Pennsylvania. Many people have heard about fault and no-fault divorces. Pennsylvania began recognizing no-fault divorce in 1980. The recognition of no-fault divorce allows couples to obtain a divorce when the quality of the marriage has disintegrated, even if they did not meet the requirements of fault-based divorce.

Fault-based divorce requires one spouse to commit a fault-based act and requires the other spouse to be innocent of any fault-based activity. If both parties engage in fault-like behavior, the court does not allow them to divorce based on fault. If the parties are merely unhappy in the marriage but have not committed a fault-based act, the parties must also stay married. This often resulted in couples who were stuck in unhappy and miserable marriages. It was also common for victims of domestic violence to be unable to obtain divorces because of the allegations their abusers made against them.

The adoption of the no-fault divorce in Pennsylvania was meant to update the divorce process to address the realities of marriage. The legislature hoped to effectuate economic justice between spouses. The law and legislative intent were written to promote reconciliation and settlement without punishing spouses for actual or perceived wrongs. Punishment of wrongs often does not promote peaceful resolution and can cause further damage to the family unit. Fault is not a consideration in the distribution of assets in a divorce.  Fault is only one factor to be considered in alimony, and it is neither a bar nor a guarantee in the determination. 

There was hope that no-fault divorce would lessen the risk of toxic environments for children who often get caught in the middle of a family dispute. Children deal with divorce better when spouses focus on resolving the economic matters associated with divorce, instead of the hatred and hurtful acts associated with the demise of the relationship.

With no-fault divorce, couples who are unhappy can mutually agree to divorce. This is called a mutual consent divorce no-fault divorce. A mutual consent divorce can be granted if each party files the correct paperwork in the correct timeframe. In the event of domestic violence, a spouse is deemed to have consented to a divorce when he or she has been convicted of a physical crime against the other spouse. This consent by conviction of a crime can also be used to obtain a mutual consent divorce.

If one party does not consent to the divorce, a no-fault divorce can be obtained when one spouse proves the parties have lived separate and apart for one year and the marriage is irretrievably broken. If one spouse testifies that the marriage is irretrievably broken, the court will usually find it as such. For a marriage to be irretrievably broken, there cannot be a possibility of reconciliation. Living separate and apart does not necessarily mean living in separate houses. The court can find that spouses have lived separately and apart while in the same residence. Living separate and apart in the same residence requires that the marital relations have ceased even though the living arrangement has not changed (see “Five Tips for Separating from Your Spouse Without Moving Out“).

Both mutual consent and irretrievable breakdown no-fault divorces have built-in waiting periods. A mutual consent divorce has a 90-day waiting period. An irretrievable breakdown has a one-year waiting period. These waiting periods help to ensure that nobody rushes into divorce. It creates time for the parties to cool off after a dispute and determine if the marriage is salvageable.

If you are wondering what type of divorce is best for you, you should consult an attorney. Each type of divorce proceeding has its own set of advantages and disadvantages. The circumstances of your marriage will help determine how you should proceed through the court.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.