No-Fault Divorce

 

Your marriage is breaking down, but you don’t have a lot of marital property and both you and your spouse want to be divorced as quickly as possible, without having ancillary issues to address. You may be a candidate for a simple, no-fault divorce. It is best to consult with an attorney to determine whether this is the best route – or even if a no-fault divorce is an option – for you.

What exactly is meant by the term “no-fault divorce?”

There are two grounds for divorce in Pennsylvania, fault and no-fault. Fault grounds are increasingly rare and don’t have as much of an impact as in the past. A no-fault ground for divorce simply alleges that the marriage is irretrievably broken. However, most divorce complaints, even when large amounts of property are involved, are filed on “irretrievably broken” grounds. Therefore, technically a no-fault divorce is not the simple, relatively inexpensive divorce that most people think of it as, because most divorce complaints allege no-fault grounds.

As noted above, in common parlance, when people hear the term “no-fault divorce,” they think of a fast and simple divorce. Therefore, from this point forward, that will be what I mean when I refer to a no-fault divorce.

What are the steps involved in a no-fault divorce?

First, a divorce complaint is filed, with the plaintiff, or filing party, alleging only one (1) count: that the marriage is irretrievably broken and requesting that the court enter a divorce decree. After the complaint is filed, a time-stamped copy must be mailed to the other spouse, along with a form which is called an Acceptance of Service form. The spouse against whom the divorce was filed must sign and return the Acceptance of Service, indicating that they received the divorce complaint, within 30 days from the date of filing. The divorce complaint must contain specific and precise language, so it is best to consult with an attorney before attempting to file on your own.

After the non-filing party accepts service, there is a mandatory 90-day waiting period. The court refers to this as a “cooling off” period before the plaintiff can request that the court enter a final decree in divorce. After the 90-day period is up, each party must sign a series of waivers and affidavits, indicating that he or she consent to getting divorced and waiving his or her right to marriage counseling, among other things. Each set of waivers and affidavits must then be filed with the court, along with what is called a Praecipe to Transmit the Record, and a proposed divorce decree. When these documents are submitted, the assigned judge will ensure everything is in order and will then issue a divorce decree.

Is it possible for anyone to get a no-fault divorce?

Technically, yes. However, it is not advisable in many, and perhaps most, situations. To begin with, you are waiving your right to equitable distribution, which is dividing any property which the parties accumulated during the marriage to each spouse. Consequently, if you and your spouse have marital property that you wish to retain, a no-fault divorce is likely not the answer.

Further, you are waiving your right to spousal support, which can be granted if one spouse earns more income than the other spouse. Moreover, you will not be able to include a count for custody in the divorce complaint, although it is possible to file a custody action separate and apart from the divorce. It is best to consult with an experienced family law attorney to determine your rights and responsibilities, and whether a no-fault divorce is right for you. A general rule of thumb is the longer the marriage, the less likely it is to achieve a no-fault divorce.

I just moved to Pennsylvania. Can I file for divorce in Pennsylvania?

You must be a bona fide resident of the Commonwealth of Pennsylvania for a period of at least six (6) months before filing a divorce complaint in Pennsylvania. Proof of residence can be shown by a utility bill, apartment lease or a wide variety of other documents. If you have been a resident for at least six (6) months, you may file a divorce complaint in either the county where you reside, or where your spouse lives.

Contact Comitz Law Firm to schedule a consultation about your divorce or other family law concern, or call us, toll-free, at (855) 589-9458.