The spouse seeking divorce, the plaintiff, must file a divorce complaint with their county court. The complaint should specify the type of divorce being sought and may contain the plaintiff’s request for child support, child custody, spousal support or property settlement.
The complaint must be served upon the other spouse, the defendant, in accordance with local court rules of procedure. At least one of the spouses must have resided in this state for at least six months.
Pennsylvania has two types of no-fault divorce. As the name implies, the two types of no-fault divorce do not require any proof that either spouse was at fault for ending the marriage.
The most common type of no-fault divorce is a mutual consent divorce. Both spouses must file an affidavit of consent to divorce as well as other documents 90 days after the complaint has been served upon the defendant spouse. Afterwards, the judge can grant the divorce.
During the 90 days, attorneys for both spouses may try to negotiate a written settlement agreement governing child custody, spousal support, property division and child support.
If the spouses resolve issues, they can execute a separation agreement which the judge can adopt as an order of court. If there is no agreement, a court may conduct a hearing and rule on these matters.
It is important for a spouse to file a written request to rule on property distribution, spousal support and other economic rights before the divorce is final. These rights may be lost if this request is not timely filed.
The other type of no-fault divorce is known as a one-year separation divorce or a unilateral divorce where the defendant spouse refuses to consent to a divorce. The divorce can be granted if the spouses have lived separate and apart for at least one year. Spouses are considered separated even if they have resided in the same home if they lived separate lives and had little to do with each other.
The spouse seeking divorce must file an affidavit stating that the parties have been separated for at least one year and that the marriage is irretrievably broken. If the defendant files an affidavit attesting that the marriage is not irretrievably broken, the court may hold a hearing and rule on whether the spouses may divorce.
Pennsylvania law still recognizes the older and more expensive fault divorce. The plaintiff must prove at a hearing that they are innocent of fault but that the defendant is at fault. The couples can be separated less than one year.
Fault is defined as committing adultery, endangering the other spouse’s life, deserting the other spouse for at least one year, being sentenced to at least two years of imprisonment, being in a mental institution for at least 18 months or mistreating the other spouse.
These divorces are more costly because each spouse must pay an attorney to present their case and must also pay the hearing master and stenographer. Also, the plaintiff needs to present evidence that proves that they are innocent, or the divorce may be denied.
An attorney can provide options to spouses seeking to end their marriage and can also help a spouse seek a fair and reasonable property settlement as well as obtain a divorce decree.