There are various legal types of divorce in Pennsylvania. Many people have heard about fault and no-fault divorces. Originally Pennsylvania only recognized fault-based divorce. Beginning in 1980, Pennsylvania started to also recognize no-fault divorce (you can learn more about what a no-fault divorce is here.
Fault-based divorce requires one spouse to engage in a fault-based act, while the other party does not. You will often hear that the wronged or innocent spouse cannot have “unclean hands.” This means that the wronged or injured spouse cannot have committed any fault-based activity themselves. If both parties engaged in fault behavior, the court does not allow them to divorce based on fault.
Are you wondering what types of activity are fault-based? The law lists six (6) categories of fault-based activity. Those categories are:
Let’s tackle each one individually.
Desertion is when a person leaves a spouse in a willful and malicious manner. The spouse must leave the innocent spouse and fail to provide support. Desertion is often used when a spouse runs off and disappears. Simply moving from the house is not desertion. If a spouse simply leaves the marital residence and establishes a separation, then the parties may need to proceed with an Irretrievable Breakdown divorce, instead of a fault-based divorce.
Adultery is when someone cheats on their spouse. The court looks for physical cheating that has not been forgiven. You do not need proof of the actual physical act (so do not go hiring a private investigator until you have talked to an attorney). The court is looking for proof that the alleged cheater was inclined to cheat and had the opportunity to cheat. This can often be proven through text messages, emails, or other communications. For adultery to be considered by the court, the innocent spouse cannot have forgiven the alleged cheater and cannot have cheated themselves.
Cruel and barbarous treatment is the fault action that is used is abuse and domestic violence cases. The actions must rise to the level of endangering the life or health of the injured and innocent spouse. Abuse that does not rise to the level of endangering the life or health of the innocent spouse, may be considered in a different fault category.
Knowingly entering a bigamous relationship is a fault category. Bigamy is when someone marries a second spouse while still married to their first spouse. Bigamy should not occur, because a marriage application requires disclosure of prior marriages and proof that the marriages have ended (through death or divorce). While bigamy is rare, it does still occur.
If a spouse is imprisoned for two or more years, the innocent spouse can obtain a fault-based divorce. Since the irretrievable breakdown waiting period was reduced to one year, this ground is often no longer necessary. The Irretrievable breakdown of a marriage can be proven before the imprisonment term reaches the required length.
Lastly, is the category of indignities. This is a catch-all category. The bad actor spouse needs to engage in conduct that results in the life of the innocent spouse being intolerable and burdensome. Abuse that does not reach the level of threatening the physical safety or health of the innocent spouse can be addressed in this category of fault divorce. Cruel and barbarous treatment may also be established through a serious of conduct that draws negative attention or shame to the innocent spouse.
If the innocent spouse establishes facts to the court the satisfies the standard of at least one fault-based category, the spouse accused of the wrong-doing can attempt to establish a defense. The defenses to all the categories of fault are condonation, connivance, collusion, recrimination, and provocation. Basically, the spouse accused of wrongdoing can establish that the innocent spouse encouraged the fault activity, forgave the fault activity, also engaged in the fault activity, or helped plan the fault activity. Any inclusion in the fault activity or forgiveness of the fault activity means the innocent spouse does not have clean hands and does not qualify for a fault-based divorce.
Adultery has its own additional set of defenses that include the innocent spouse being guilty of the same conduct, engaging in sexual activity with the spouse after learning of the affair, prostituting the spouse, or exposing the spouse to lewd company that then engaged in the affair. If one of these defenses to adultery are established, a fault-based divorce is not an option.
Establishing fault does not affect the distribution of assets. Fault is a consideration in alimony and spousal support cases. You do not need to plead a fault-based divorce for the fault to be considered in an alimony matter. Spousal support is decided before a divorce complaint is filed, so you do not need to file a fault-based divorce in spousal support cases either.
If you are wondering what type of divorce is best for you, you should consult an attorney. The specific facts of your marriage and separation will help you and your attorney decide whether to file a fault or no-fault divorce.
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.
Pittsburgh Family Law Attorney Julie focuses her practice on family law matters including divorce, child custody, support, asset division, prenuptial agreements, and international custody. Julie also has experience in family law...
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