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DIVORCE No-fault divorce was enacted in Pennsylvania in 1980. Prior to no-fault divorce, a person could not obtain a divorce unless they had grounds for divorce such as adultery, indignities to the person, desertion and several other specific reasons. With the passage of the no-fault law, the courts now favor no-fault divorce and frown on divorces brought on grounds. Divorce based on fault still exists, it is just very infrequently used. In New Jersey, a no-fault divorce requires an 18-month separation, a master’s hearing and resolution of all of the usual issues we find in PA, NJ and DE (and other states) related to divorce actions. PA, NJ and DE decide marital economic issues on an “Equitable” (fair) distribution” basis as opposed to the jurisdictions that divide property by Title, i.e. according to whom the property is registered, or the laws of "Community Property" states. In Pennsylvania, there are two ways to obtain a no-fault divorce. One is by mutual consent when both parties agree that the marriage is ”irretrievably broken”. Other states may use the term “irreconcilable differences.” The bottom line is that the couple agree that they can’t get along any more and need to separate. Once a divorce complaint is filed, and after a 90-day waiting period, the parties can proceed to obtain a no-fault divorce by filing individual affidavits stating that the marriage is “irretrievably broken.” The other way of obtaining a no-fault divorce in Pennsylvania is by showing that the couple have been separated for two years. In this way, a divorce can be obtained unilaterally i.e. it can be obtained by one spouse without the consent of the other. The economic and other issues will still be decided by agreement or court order. The no fault law also provides for mandatory counseling and if one spouse requests it, the court will order it. The statistics are not encouraging; the experience of the writer is that most of these counseling session fail because one of the spouses is determined to obtain a divorce. If, on the other hand, the couple is having a hard time and one has decided that divorce may be the answer, but neither have drawn “hard lines”, counseling may work and reconciliation result. NOTE ON FAULT DIVORCES: For a person to prevail in a divorce action on FAULT GROUNDS, it must be shown that he or she is the “innocent and injured spouse” i.e. the party bringing the complaint cannot be guilty of behavior that would constitute grounds for divorce if the other spouse brought a divorce action. The person bringing the action must also show that the conduct of the other spouse is the cause of the marriage’s failure. LEGAL SEPARATION
I can not recall the number of times I have been asked by individuals about a “Legal Separation.” Many years ago, before no-fault, there was an action called “divorce from bed and board” which was a recognition that the couple were living ‘separate and apart’ and support for spouse and children was obtained through the Family Court System. Today, legal separation means no more than the couple lives separate and apart and it is not illegal to do so with the exception of DESERTION without cause which is a ground for a fault divorce action. This may because both parties agree or because one feels compelled to leave the marital home for various reasons. CAN A COUPLE BE CONSIDERED SEPARATED WHEN THEY LIVE IN THE SAME RESIDENCE? Yes, but this could be a very difficult arrangement to both endure and prove. If one spouse can prove that the couple did not have marital relations, slept in separate rooms, did not eat together, etc., he or she may be able to sustain the burden of proof required to show that there was a separation while living under the same roof. If the other spouse denies this, it may be difficult to prove meaning that one spouse will have to leave the residence and live separate and apart for the two year period in order to obtain a no-fault divorce. OTHER DOMESTIC ISSUESSome of the other domestic issues that can be related to divorce include spousal abuse, property settlement agreements (which raises a whole crop of other issues such as: jointly owned real estate, joint bank accounts, personal property within the house pensions, etc.), excluding one spouse from the house, enforcement of pre-nuptial agreement, post-nuptial agreements (a separation agreement), temporary alimony during the pendancy of a divorce proceeding, annulment, child support, child custody/visitation, inherited property during marriage, property owned prior to the marriage, increase in value of such prior owned or inherited property, common law marriage survivor’s benefits and many other issues. There is such a thing as a simple “slam dunk”, divorce but they are rare. An example may be where the spouses agree to a mutual consent, no fault divorce, own or have no jointly held property, pensions, savings accounts or other property of any value and agree on division of whatever property they do have, have no minor children and each one is able to support themself and neither wants or needs alimony and both are free of ill health or disability. WHEN SERVED WITH A DIVORCE COMPLAINT, WHAT’S NEXT?If you are served with a divorce complaint do not panic.
Contact your lawyer as soon as possible to have him or her review the
papers and advise you. Note:
One lawyer can not represent both you and your spouse in a divorce,
separation agreement or on any other related issue. It is strongly suggested that both parties have an attorney
to advise them of their respective rights regarding all issues and to
prevent subsequent complaints of unfairness which might lead to legal action
attacking the Agreement. Ó 2003 James W. Pearson, Jr., All Rights Reserved. For help with a question or situation related to Family Law, please contact us.
FOR
ADDITIONAL INFORMATION CALL THE TOLL FREE HELP LINE 1-800-232-1477 E-mail: lawyer@lawwalk.com JAMES
W. PEARSON, JR. Chair of the Federal & State Credit Union Department & Coordinator of legal consultations under the Family Legal Care Plans offered to credit union members. |
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