Divorce

Divorce is a creature of state law, and as such, varies from state to state. During the 1970’s and 1980’s, most states adopted no-fault divorce laws combined with comprehensive schemes for equitable distribution or division of marital or community property. These laws were a natural extension of the married women’s property laws that were enacted early in the twentieth century, giving women the right to own property separately from their husbands’ property. The married women’s property laws did not go far enough, however, in ensuring that women had sufficient property to support themselves after a divorce; and divorced men universally despised alimony, which was the remedy provided by state legislatures to keep divorced women off the welfare roles. No-fault divorce was viewed as a solution to the problem of impoverished divorcees, and while it may have contributed to other problems, it has proven effective for that purpose.

Prior to the advent of no-fault divorce laws, divorces were not granted unless a petitioner could prove that a spouse were insane, impotent/infertile, unfaithful, abusive, or unfit. Some believe that these fault grounds should be required today, arguing that couples do not make enough effort to stay together. In my experience, having met hundreds of divorcing spouses over nearly two decades, I believe that most try their best to make their marriage work. The pain and expense of a divorce is not something most people take lightly.

I practice in Pennsylvania and have limited experience in other states’ laws. Most of the articles on this site refer to Pennsylvania law. The Pennsylvania Divorce Code of 1980 pioneered the concepts of no-fault divorce, equitable distribution of marital property, and post-divorce alimony in Pennsylvania. The Divorce Code has been modified by the Pennsylvania Legislature in 1988 and 2005.

Marital fault is irrelevant in the vast majority of divorce cases filed in Pennsylvania. However, a petitioner can plead fault grounds by proving infidelity, desertion, insanity or other grounds defined by statute. Even in a no-fault case, marital fault can be raised as a defense to an alimony claim, and it can be raised as a defense to spousal support before a divorce complaint is filed. The courts are prohibited from considering marital fault in the context of property division.

There are two paths to a no fault divorce: (1) if both spouses consent by signing affidavits (sworn statements), they can be divorced after a 90-day period has elapsed following the filing of a divorce complaint; or (2) either spouse can obtain a unilateral no-fault divorce when two years has passed since separation. Separation generally means a financial and physicial separation, although spouses may be separated under the same roof. Pennsylvania does not recognize the concept of a “legal separation.”

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