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No-Fault Divorce in Pennsylvania

February 24, 2012

1. History, 2. Law

No-Fault Divorce in Pennsylvania

I grew up in the 1960s.  Maybe I could have guessed that I’d become a lawyer because I loved to watch Divorce Court.  (Apparently there’s a new version on Court TV – I don’t watch TV much.)  But there I was, 8 or 9 years old, glued to the television as Mrs. Smith sat all teary eyed as some now-remorseful young thing admitted to having sexual relations with her middle-aged husband.  I loved cross-examination as husbands and wives were compelled to admit that they, too, were imperfect skanks that kept messy homes and couldn’t cook a decent meal even if someone stood behind them with a Bible and a rope.

Beyond the theater of it all, there was a very real reason for the show:  It played out in courtrooms every day.  Until 1970, there was no such beast as a no-fault divorce.  In order to end the countless days when a spouse would awake at 3 AM and listen closely for breathing next to him or her only to think “Aren’t you dead yet?”, a couple had to prove that there existed acceptable grounds for divorce:  Adultery, indignities, etc.  Two people that had grown to detest one another had to testify on the stand that one of them was tapping a coworker – and it most often was not true.  The system required people to lie under oath.

How bad was it?  We need to set the Wayback Machine to 1819 Alabama.  The state Constitution included this clause:

SEC. 13. Divorces from the bonds of matrimony shall not be granted, but in cases provided for by law, by suit in Chancery: and no decree for such divorce shall have effect until the same shall be sanctioned by two thirds of both Houses of the General Assembly.

Really?  Yeah.  Your divorce required court action and then the legislative branch of state government had to approve it by a super majority.  No wonder there were so many unsolved murders back then.  And when did New York State join the no-fault parade?  August 2010.  Not even a year ago.  Before that, they still had all sorts of hoops to jump through.

Think I’m being flippant in the “unsolved murders” crack?  Consider this:  Using a variety of solid resources, a study claims the following results after the introduction of no-fault divorce laws:

  • 20% reduction in female suicide after 20 years, none for men
  • 33% reduction in domestic violence against women (after a rise in other states vs. a drop in no-fault states)
  • Reduction in the domestic murder rate for women, none for men

I believe it.

Sure, no-fault laws make it easier to get divorced – and therefore easier to get married:  “I’ll be with you as long as I love you,” she said as I felt something inside me die.  But we can’t tag every divorce on the putative easy way out now provided by the law.  There are very real expectations in marriage that get very real cracks.  All the law has done is to allow divorce to be a personal decision without some series of hoops that need to be satisfied in the eyes of the state government.

In Pennsylvania, there’s two paths to a no-fault divorce:  The marriage is “irretrievably broken”, and long-term separation.

If a marriage is claimed to be irretrievably broken, the process can be done in about 110 days or so.  Divvying up kids and assets (and liabilities) can certainly slow that down.  But then you can bifurcate the action – get the divorce decree and settle the custody and marital estate issues afterward.

The separation-based divorce can be as quick as about 45 days.  The parties have to have been separated for two or more years.  The issue with kids and assets remains.  Pennsylvania has a very simple process to determine if two married people are separated:  One of them has decided that the marriage is at an end, and the couple has ceased doing those things unique to married people (mainly, sexual relations).  They can continue to live under the same roof.  Other states require a legal filing to establish the date of separation.

Being “separated” is important in any divorce action.  Assets and liabilities are often determined as of the date of separation – the ownership of them, that is.  The valuation of them may drift out to the date of the divorce decree.  But assume that you are separated and then purchase stock.  That is owned by you alone (generally – unless you’re on the other side of my case then I’ll try to prove that you merely changed form of a marital asset).  The share price screams upward.  You party with the only semblance to a friend you have in the world – your estranged wife.  You do the married thing for a night.  Ut oh!  You just created a new, later date of separation – and may have just kissed away part ownership of that stock.  Silly you.  They rent prostitutes for a reason.  It’s cheaper.

Pennsylvania still has fault-based divorce grounds.  A spouse can still try to prove adultery.  Maybe they even have proof.  But the marital estate is going to be divided without any consideration of bad behavior.  Also, as a general statement, parenting skills are not impacted by adultery – so custody is therefore not impacted.  So going through the process of proving fault may  make an emotional statement and will cost of lots of lawyer fees.  Usually not worth it.  Get divorced, take your share, and move on.

Last thought – Pennsylvania has an interesting rule that bypasses personal jurisdiction for certain no-fault divorces.  If your divorce is no-fault (either form as discussed above) – and there are no issues to settle – then it can be filed in any PA county.  For example, I used to do mediation work.  Still do when the clients have the knives put away.  We negotiate the financial settlement, write it up, and sign off.  We can then file for a no-fault divorce.  And here’s the kicker – I can file in my central PA court for a divorce out of Philadelphia or Pittsburgh.  I’ve done divorces from all corners of the state over the phone with a few mailing back and forth.  In theory, this can be done even if custody needs to be addressed in an already-negotiated agreement, but lots of judges are uncomfortable with approving custody agreements for kids far away from their jurisdiction.

PS – I swiped the post image from here – they help you plan a divorce party.  Why not, right?

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde

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