Types of Divorce in Pennsylvania
Pennsylvania’s divorce laws are very flexible. Not only does the Commonwealth allow you to sue for divorce, which is the traditional method of divorce, but is also allows a couple to get divorced by agreement.
When you are considering divorce, it is important to understand the different types of divorce available in Pennsylvania and how they are processed. If you are considering divorce, it is important to talk to a family lawyer about your plans. The experienced divorce attorneys at Sadek and Cooper can help you understand which type of divorce is available to you, what grounds might be appropriate, and what type of divorce might be best for you.
- In a “fault” divorce, one party sues the other for divorce and must prove the grounds for divorce in court.
- In a “no-fault” divorce, one party may still start the suit, but ultimately, both parties allow the divorce.
The following is an explanation of the individual types of divorce, both fault and no-fault.
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Types of Fault Divorce in Pennsylvania
The most recognizable types of divorce are fault divorces. These are divorces based on certain “grounds,” which the lawmakers have decided are good reasons to get divorced. These types of divorce are authorized under two sections of Pennsylvania’s Divorce Code: 23 Pa.C.S. § 3301(a) – Fault, and s 3301(b) – Institutionalization
These divorces are authorized under 23 Pa.C.S. § 3301(a). This is the classic type of divorce. When American law first came to exist, it was adopted from English Common Law. Many of the principals from this nearly ancient law are still used today. Our grounds for fault divorce are adaptations of these old common law grounds for divorce that have been codified by lawmakers.
Pennsylvania’s fault grounds for divorce may seem somewhat old or antiquated, and a lot of that comes from their origins in common law. Regardless of how they sound, they should be available to either party in a divorce, regardless of gender.
Pennsylvania’s six grounds for fault divorce are:
- Willful and malicious desertion – one spouse left the other for over a year.
- Adultery – one party cheated on the other.
- Cruel and barbarous treatment – one spouse endangered the other’s life (e.g. through abuse).
- Bigamy – one spouse was already married.
- Imprisonment – one party is going to prison for at least two years.
- Indignities – one spouse made the other’s life intolerable (e.g. through verbal or mental abuse).
In a marriage where one party does not want to get a divorce, the other can sue for divorce based on any of these grounds (or multiple grounds). As long as they can prove the grounds for divorce, the court should grant the divorce.
These are often the longest and hardest types of divorce, because they are truly one side against the other.
Though this type of divorce does not technically require “fault,” it is very close to the “imprisonment” ground of fault divorce. Nevertheless, it is listed separately from “fault” grounds, under § 3301(b), and should be treated as a separate “type” of divorce.
This type of divorce is for anyone whose spouse will be confined to a mental institution for at least 18 months because of “insanity or [a] serious mental disorder.” There must also be little chance that the spouse will be cured or discharged in that 18 month period.
Types of No-Fault Divorce in Pennsylvania
In Pennsylvania, there are two different types of no-fault divorce, authorized under 23 Pa.C.S. § 3301(c) – Mutual consent, and § 3301(d) – Irretrievable breakdown. These are both “no-fault” divorces, but legally work differently, mostly in how the filing works. For this reason, they can be thought of as different “types” of no-fault divorces.
Both of these types rely upon the grounds that the marriage is “irretrievably broken.” This is nothing to fear, and is not an admission of failure or anything negative. It merely means that the marriage is not working, and cannot be fixed.
Mutual Consent Divorce
A mutual consent divorce under § 3301(c) requires some teamwork between the parties. Under this type of divorce, both parties file affidavits with the court. An affidavit is a sworn, signed statement, and in their affidavits, both parties agree to the divorce.
The initial filing for this type of divorce must allege that the marriage is irretrievably broken, but this is more of a technicality – the important part is that the parties both agree to the divorce. Additionally, there is a 90-day waiting period between filing and finalizing the divorce, just in case anyone changes their mind. After that period, the divorce can be finalized cheaply and easily.
Irretrievable Breakdown Divorce
Instead of both parties working together, this type of divorce is granted when one party does all the work, and the other fails to object. Under § 3301(d), one party files for divorce, claiming the marriage is irretrievably broken. In order for the divorce to be granted, the other party simply needs to not deny the allegations. This could be called an “uncontested divorce” or a “no contest divorce.”
If they do deny the allegations, the divorce can still be granted, but requires a bit more work. The court can hold a hearing to determine whether the couple has lived “separately and apart” for at least two years. If they have, then the court will grant the divorce despite the other party’s denial that the marriage is broken.
Sometimes, a court may think that there is a chance the couple could reconcile and fix their marriage. In this case, they might order marriage counseling or other programs to try and fix the marriage. If these fail, the couple can still be divorced.
Because the couple must live separately for two years, this could take up to two years from the decision to get divorced to the finalized divorce order – much longer than the 90 days for a mutual consent divorce. This could be much faster though, if you wait to file for divorce after two years of separation.