Should You Include Fault in Your Pennsylvania Divorce?

Couple Blaming Each Other

Blame and fault is almost always part of getting a divorce. There is a reason why couples no longer want to be together, and each spouse probably has a different explanation for what went wrong. In Pennsylvania, some of those reasons affect the process itself. That raises the question of whether you should include fault in your Pennsylvania divorce. Our expert attorneys discuss below, but you should contact us for a free consultation on your specific case. We serve clients in Delaware, Chester, and Montgomery Counties, as well as the city of Philadelphia.

Fault-Based or No-Fault Divorce - What’s the Difference?

Pennsylvania offers two different processes to end a failed marriage: fault-based and no-fault divorces. Divorces based on fault are older, and have specific requirements that the person suing for divorce has to prove before the judge will end the marriage. The fault-based reasons for divorce are:

  • Desertion: If your spouse walked out on you to hurt you or for other negative reasons, that may be grounds for a fault-based divorce. You must wait one year and your spouse must live somewhere else that whole time.
  • Adultery: If your spouse is having a sexual relationship with someone else, that may be grounds for a fault-based divorce, if you can prove it with more than just your suspicions. A romantic relationship itself is not enough. You must prove both “opportunity” and “inclination” to commit adultery. A romantic relationship that you can prove by showing signs of affection such as kissing in a restaurant is proof of “inclination”. “Opportunity” can be shown by proof of staying together overnight. Having a baby together is obvious proof of adultery.
  • Cruel and Barbarous Treatment: If your spouse is physically abusive to the point that your “life or health” was endangered by their behavior, you can sue for a fault-based divorce. The proof in these cases can include photos of the injuries, police reports, or medical records.
  • Bigamy: You can’t be married to more than one person at a time. If your spouse knew they were married when they married you, that is the basis for a fault-based divorce.
  • Imprisonment: If your spouse is convicted of a crime and sent to prison for at least 2 years, you can sue for a fault-based divorce.
  • Indignities: This is the vaguest of the fault-based reasons. It includes anytime one spouse treats the other so poorly” as to render that spouse’s condition intolerable and life burdensome.” Examples of Indignity divorces include verbal or emotional abuse, embarrassment or public shaming, mistreatment, and severe debt.

More recently (starting in 1980), Pennsylvania has added no-fault divorce as an option for couples seeking to end their marriage. In a no-fault case, neither spouse must prove what the other did to cause the divorce. Instead, the grounds for no-fault divorce are:

  • Mutual Consent: Both spouses agree and sign affidavits saying that the marriage is “irretrievably broken.” There is a 90-day waiting period after the action is filed to be sure the parties will not get back together.
  • Separation: After the spouses have been living separately for at least 1 year, either spouse can file a no-fault divorce based on the “irretrievable breakdown” of the marriage. If one spouse thinks the marriage can be saved or disputes that they were separated, you may have to complete reconciliation counseling or prove the breakdown through testimony at a hearing.
  • Institutionalization: This is similar to the imprisonment grounds above, except that instead of prison, one spouse is taken into inpatient mental health treatment for at least 18 months before the divorce is filed, and there is no reason to believe that they will be released for another 18 months after the case has started. This is considered no-fault divorce because the court system does not blame a person for their mental disabilities or condition.

Will Claiming Fault Affect Your Property Division?

With all these options to choose from, you may be wondering why you would choose fault or no-fault grounds for your divorce. The first assumption may be that it will affect what you get in the divorce judgment. However, Pennsylvania law says judges may not consider fault in dividing up a couple’s property. That’s true even in fault-based divorces. Instead, your judge will divide your property fairly based on consideration of 11 statutory factors, including:

  • Each party’s contribution to the marriage (financial or otherwise)
  • The length of the marriage
  • The sources of income for each party
  • Each party’s opportunity to acquire assets in the future
  • Each party’s economic circumstances at the time of distribution of assets
  • Each party’s needs and resources
  • The standard of living established during the marriage.

Why Should You Include Fault in Your Pennsylvania Divorce?

Fault may not be a factor for the court to consider in awarding property, but it can still affect other aspects of your case. You should include fault in your Pennsylvania divorce if:

  • You need to end the marriage more quickly than no-fault waiting periods allow
  • You believe that your spouse may cause delays by contesting the date of separation and/or that the marriage is irretrievably broken
  • The fault may entitle you to spousal support

When is a No-Fault Divorce a Better Option?

That said, for a growing number of Pennsylvania couples, the benefits of a fault-based divorce are outweighed by its financial and emotional costs. Fault-based divorces are expensive. Both sides will spend a lot of money on attorney fees to show who did what to whom during the marriage. Remember that the party filing for divorce must prove the fault claimed. That means you and your divorce attorney will need to find evidence of what happened, and what harm was caused by it.

Then there is the emotional cost of a fault-based divorce. If you are the victim of abuse or indignity, or have learned about your spouse’s adultery, you may not want to sit on the stand and be cross-examined about everything that happened to you. It may be hard to hear your spouse’s accusations against you. You could spend weeks or months reliving the harm that they caused.

In most cases, you can limit those costs in a no-fault divorce. Especially under mutual consent, the parties can agree to put the pointing fingers away and move toward resolution without the hurt and expense of blaming each other for why the marriage is irretrievably broken.

At Berman & Associates, our experienced family law attorneys know the pros and cons of both fault-based divorce and no-fault divorce options. If your marriage has fallen apart, we will meet with you and provide honest, knowledgeable advice to guide you forward. We welcome you to contact us to speak with us about how we can help with your family law matter.

Categories: Divorce, Family Law