June 22 2011

Litigating Pennsylvania Fault Divorces in Bucks County, Montgomery County and Philadelphia Counties to Expedite Entry of a Divorce Decree for Economic, Psychological or Social Reasons

Blog Written by  Alisa

In the past to obtain a divorce in Pennsylvania one spouse had to prove "fault" by the other spouse. That, however, is no longer the case in Pennsylvania. Now a Pennsylvania divorce may be obtained without a party having to prove that the other party is somehow legally at "fault." The Pennsylvania fault divorce, however, still survives as a legal option and in certain circumstances, where grounds for a fault divorce exist and where the opposing party refuses to consent to a no-fault divorce, it may be economically advantageous or psychologically beneficial for the party seeking the divorce to pursue a fault divorce.

In Pennsylvania there are two types of divorces: fault and no-fault.

Obviously, a fault divorce requires some type of legal "fault" by the opposing party, such as adultery, bigamy, indignities (a catch-all category for general mistreatment), or abandonment. The grounds for a fault divorce are defined by statue. Further, the party seeking a fault divorce cannot themselves be at fault or have condoned or subsequently ratified the fault behavior, such as where a party resumes martial relations with a spouse known to have committed adultery.

In contrast to a fault divorce, in a Pennsylvania no-fault divorce proof of legal fault is not required. Rather, the only requirement is that one or both parties want to get divorced. The vast majority of Bucks County, Montgomery County and Philadelphia County divorces proceed as no-fault divorces, even if fault is present, because the parties generally do not want to testify in open court to establish ìfaultî grounds and because no-fault divorces are simpler and generally less contentious. However, the length of time it takes to obtain a no-fault divorce is dependent on whether both parties agree to proceed with the divorce.

There are two types of no-fault divorces available in Pennsylvania: no-fault divorces in which both parties consent to the divorce and no-fault divorces where only one party consents to the divorce. In the former case, the divorce can proceed as soon as 90 days after the divorce complaint is served. In the latter case, however, where one spouse does not want the divorce or will not agree to a no-fault divorce (due to economic or other reasons), the divorce cannot proceed until two years have elapsed from the date of separation, which is presumed under law to be the date the divorce is filed (although the presumption is rebuttable based on evidence of another date of separation presented at a hearing). Thus, a disagreeable spouse or his or her divorce lawyer can potentially delay a divorce for two years or more, all while the delaying spouse continues to receive economic benefits from the marriage, such as spousal support and residence in the martial home.

Where fault grounds exist, however, the party seeking the divorce can expedite the divorce by proceeding on a fault ground if consent is not forthcoming. A party might desire to expedite the divorce for any number of reasons. For example, the party may no longer wish to support their estranged spouse economically, or the party may want to sell the marital residence or just simply finally separate themselves from their estranged spouse.

In these cases, a party can allege grounds for a fault divorce in a divorce complaint filed in Bucks County, Montgomery County or Philadelphia County and then request a hearing to establish and prove the legal grounds for a fault divorce. In Bucks County Divorces, the process for establishing fault grounds consists of a record Divorce Masterís hearing and then, potentially a court trial if one party disagrees with the Bucks County Divorce Masterís recommendation. The process is very similar in both Montgomery County divorces and Philadelphia County divorces.

Practically speaking, however, with a fault hearing pending, parties are more likely to agree to consent to a divorce to avoid having the details of inappropriate conduct aired in court. Indeed, in the cumulative 35+ years the Bucks County Divorce lawyers at Cooley & Handy have been practicing family law, we have collectively only had to litigate one fault divorce through a hearing. In all other cases, the opposing party signed their affidavit of consent to a no-fault divorce prior to the fault grounds hearing. Thus, the mere threat of moving to proceed on fault grounds is usually all the leverage that is needed to obtain a speedier no-fault divorce.

Economic and emotional factors, as well as custody issues, can come into play in deciding whether it is advantageous to attempt to proceed on fault ground. Persons considering this option, therefore, should discuss the matter with a Bucks County divorce lawyer, a Montgomery County divorce lawyer or a Philadelphia County divorce lawyer, such as the attorneys at Cooley & Handy.

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