FAULT V. NO-FAULT DIVORCE
Fault Divorce
In a "fault" divorce, one spouse accuses the other of engaging in some type of misconduct that led to filing a divorce. Fault must be proven in court.
In general, the fault grounds include:
- adultery
- abandonment without cause for at least one year
- cruelty, including domestic violence, which endangered the life or health of the injured and innocent spouse
- bigamy
- conviction of a crime and imprisonment for two or more years, and
- humiliating the innocent spouse in such a way that makes the marriage intolerable.
Usually, fault grounds are used in order to try to gain an advantage inequitable distribution or alimony, however, “punishing” a spouse for bad behavior is less and less a factor since courts do not look at bad behavior to determine financial distribution. Fault grounds can also be used in order to help finalize a divorce if the waiting time for a no-fault divorce is too long or if the other spouse is fighting the finalization of the divorce.
No-Fault Divorce
Divorcing spouses who don’t want the drama of court battle have an alternative to a “fault divorce,” which is the “no-fault” divorce.
In a no-fault divorce, there is no blame assigned to either spouse. Spouses can request a divorce based on the ground of “irretrievable breakdown,” which just means the couple can’t get along anymore, and their marriage is broken beyond repair.
Mutual Consent
A court may grant a divorce by mutual consent as long as all of the following requirements are met:
- the couple has alleged that the marriage is irretrievably broken
- the requisite waiting period has run since the parties separated (which varies by jurisdiction)
- both spouses have filed an affidavit or other consent (written declaration) stating that they each consent to the divorce.
Irretrievable Breakdown Without Mutual Consent
Where one spouse seeks the divorce, and the other doesn’t consent, the court may grant the divorce if the following requirements are met:
- a divorce complaint has been filed alleging that the marriage is irretrievably broken
- the spouse seeking the divorce has filed an affidavit stating the couple has lived separate and apart from the state-mandated amount of time and that the marriage is irretrievably broken, and
- the defendant (the spouse that must respond to the divorce) does not deny the allegations set forth in the affidavit or denies one or more of the allegations set forth in the affidavit.
- If the defendant states there are still issues pertaining to equitable distribution, the court will conduct a hearing, after going through a pre-hearing/master process, to try to resolve the issues. However, after the requisite period of time, depending upon the jurisdiction, the defendant can no longer stop the actual divorce. It can be held up due to challenges of the division of marital property, but that would be the only block to a divorce under this option.
Different jurisdictions have different procedures for fault and no-fault divorce. The above discussion pertains to the laws in general for PA, NY and MD.
The Law Office of Robin J. Gray has 28 years of experience of knowledgeable and aggressive representation for people going through a divorce.
Contact Attorney Gray at (484) 769-5855 or online here to schedule an appointment.
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