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Divorce: some questions and answers

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What is no-fault divorce?
In Pennsylvania, a “ground” for divorce is always needed to legally dissolve a marriage.  Using a “no fault” ground for divorce just means that you don’t need to prove that there is a “good guy” and a “bad guy” to get your divorce decree.  There are two “no fault” grounds for divorce in Pennsylvania: “Mutual Consent,” which requires that each spouse sign consent forms after a 90-day waiting period before the divorce process can conclude; and “Irretrievable Breakdown,” which requires at least a one-year separation (reduced from two years effective 12/5/16, with certain exceptions).  You can use a no-fault ground even if you or your spouse did something wrong, and nothing about using a no-fault ground prevents a court from resolving disputes over support, property distribution or child custody.  No-fault divorces are never “automatic,” even though a no-fault divorce can be a relatively uncomplicated process when both spouses agree.

What is fault divorce?
As with no-fault divorce, “fault” grounds for divorce are set forth in the Pennsylvania Code.  Fault grounds include willful and malicious desertion without reasonable cause for a year or more, adultery, cruel and barbarous treatment which endangers the life or health of the other spouse, knowingly entering into a bigamous marriage, being sentenced to imprisonment for a term of two or more years upon conviction of having committed a crime, or offering such indignities to the other spouse so as to render that spouse’s condition intolerable and life burdensome.  The spouse looking for a “fault” divorce has the burden of proving that the other spouse did wrong, and must also show himself or herself to be “innocent and injured.”  Fault grounds for divorce are hardly ever used today, because no-fault divorce is generally less expensive and does not require the kind of extensive proof needed in a fault divorce proceeding.  Nearly all divorces granted today are no-fault divorces, even when a spouse has “fault” grounds available.  In my quarter-century as a Pittsburgh divorce lawyer, I have handled only three fault-ground divorces; and concerning the last of them, I learned that the judge’s staff was very excited about the case because the judge had never handled one at all!

What about annulment?
Annulment is only available in Pennsylvania for either “void” or “voidable” marriages.  A marriage is void under the law if the marrying parties could not legally marry, for example if they are brother and sister.  Examples of voidable marriages include “shotgun” weddings, or when one or both spouses were drunk at the time of the wedding.  Annulment under the law is not to be confused with religious annulment, and obtaining one can be substantially more expensive than getting a divorce.  Regretting a decision to marry, however short the marriage, does not by itself constitute grounds for annulment.

Will I have to appear in court?
The court system exists mainly to resolve disputes and to enforce agreements.  In most Pennsylvania counties, if both spouses are in agreement regarding all aspects of the divorce proceeding, there is no need to appear in court.  An annulment proceeding does require a court appearance.

What if we were married in another state or country?
It is not where you were married that matters, but where you and/or your spouse reside.  If either you or your spouse has been a bona fide resident of Pennsylvania for the six months immediately prior to the filing of the Complaint in Divorce, Pennsylvania’s requirements are satisfied and you can file here no matter where you were married.  You can still be considered a Pennsylvania resident if you are in the military services and have been stationed elsewhere, provided that you have maintained your status as a Pennsylvania resident.

How do I get a legal separation in Pennsylvania?
Some states require “legal separation” prior to divorce.  In Pennsylvania, however, legal separation does not exist; you do not need to “get” a separation to commence living separate and apart from your spouse.  Spouses can be considered separated when one of them notifies the other that the marriage is over, even if they continue to reside at the same address for a time.  The date of separation can be important when determining what is and is not marital property for purposes of distribution, or when deciding which no-fault ground for divorce to use.

Can I date before I am divorced?
Once you and your spouse have made your final separation, neither of you has any expectation of the other’s fidelity that a Pennsylvania divorce court will recognize.  Marital misconduct after the date of final separation (that does not involve violence) will not be considered by the court when making determinations of alimony or property distribution.  Assuming that you exercise appropriate discretion around your children and have properly prepared for the effect a new relationship will have on them, child custody should not be affected.  Actual cohabitation with a boyfriend or girlfriend (as opposed to mere dating) can cut off a right to spousal support or alimony, since cohabitation has the effect of forming a new household.

Can I claim alimony, property or debt contribution from my ex-spouse after I am divorced?
Divorce in Pennsylvania is intended to bring economic closure to the divorcing spouses, as well as personal closure.  Unless you have protected your claims against your spouse with a written agreement, or you have filed a formal claim for economic relief with the family court prior to the award of a divorce decree (such as alimony or marital property distribution and allocation of marital debt), your rights to do so are probably lost forever.  Please note that any claims relating to your children, whether for child support or child custody, are not affected by divorce; since these involve independent rights of your children, they cannot be lost.

Does my spouse have the right to live with me or enter my home?
The mere fact that you remain legally married gives your spouse no special rights to be near you, in your home, or to harass you.  If you are living in a different residence from the one the two of you shared, and your spouse is not an owner or fellow renter, you can have your spouse removed by the police just like any other trespasser (or you can simply refuse to open the door).  However, if you are not yet separated (even if your home is in your name alone), or your spouse is an owner or named renter of your residence, your spouse can probably come and go as he or she pleases.  Even changing the locks might not help, since it is not illegal to break into one’s own property.  Police generally will decline to remove a spouse from his or her marital home, no matter who owns the home.  It is sadly common to have a “pressure cooker” situation in which neither party will budge from the house.  Usually, changing the situation takes some sort of compromise, a willingness for someone to back down and leave, a lawsuit for “exclusive possession,” or the award of a Protection from Abuse Order.

Can my spouse throw me out?
If the two of you are still living together in your shared residence, the odds are that neither of you can throw the other one out, even if the residence is in the name of only one of you (either rented or owned).  Police will generally not get involved in deciding who gets to live there and who has to leave, unless there is a violent situation.  Although a family court has the power to award “exclusive possession” of your home in some circumstances, that process (if opposed) can take months.  If you are looking to stay in the marital residence and your spouse wants you out, it is a very good idea to avoid expressions of frustration or anger which could be misinterpreted as a violent threat or a physical attack.  Keep your voice down, keep your distance, keep your hands down (avoid gesticulating), and say nothing that could be interpreted as a physical threat.  It is all too easy for something to occur between you that your spouse can either misinterpret or inflate out of proportion for the purpose of getting a Protection from Abuse Order.  Even if you feel that you are being provoked to use violence, avoid doing so at all costs.  There is never an excuse for initiating violence of any description as far as the Court is concerned, and such a thing is likely to come back to haunt you.  Pushing, grabbing and the use of physical intimidation can be just as bad as punching.  If you are worried that your spouse might try to get a Protection from Abuse Order against you, justified or otherwise, it is a good idea to make sure that you have a place you could go in a pinch, with at least some changes of clothing and personal items stored outside the house for easy access.  If you, yourself are the victim of domestic violence or have been put in fear of imminent injury (by threats or gestures), you may be eligible for a Protection from Abuse Order.

If I leave, can my spouse “get me” for abandonment?
“Abandonment” for a period of a year or more is one of the “fault” grounds for divorce.  However, you are not abandoning anyone if you have a good reason to leave, if you are asked to leave by your spouse, or if you agree with your spouse that you should leave.  For your departure to qualify as abandonment, your spouse must be “innocent and injured,” and that is usually not the case.  In any event, abandonment or other fault grounds for divorce have absolutely nothing to do with property and debt distribution rights, have only a limited role to play (if any) in alimony considerations, and generally do not affect child custody or support rights.  If you are considering leaving without your children, it is a good idea either to have reached an agreement regarding custody and parenting of your children (your divorce and family lawyer can draft one for you), or to have initiated a custody process in court and asked for an interim custody arrangement; otherwise, you depend on your spouse’s goodwill to allow you to play your role as a parent.  If you want your children to live with you primarily, you should know that leaving your children with your spouse can establish a status quo which can be very difficult to change later.  If you take your children without your spouse’s consent, your spouse can file for custody and ask the children to be returned.  It is always best to reach agreements with your spouse regarding custody and parenting of children prior to leaving, if possible.

I don’t know how to find my spouse.  Can I still get divorced?
Under certain circumstances, yes. Ordinarily, after divorce papers are filed with the court, they must be served on your spouse by having him or her sign for them, by sending them certified mail, or by having someone deliver them personally.  No divorce decree can be granted without proper service.  If you have made a genuinely diligent effort to find your spouse (which can include searching the Internet, hiring an investigator, checking for mail forwarding instructions at the Post Office, contacting your spouse’s relatives or friends, and searching based on your spouse’s Social Security Number) and you have been separated more than two years, you can ask the court to grant permission for “alternative service.” A court can permit you to serve the divorce papers in an alternate way, perhaps on your spouse’s relative or by placing advertisements in newspapers.  Once that is done, you can get a divorce decree based upon the Irretrievable Breakdown ground.

If you need legal assistance with your divorce or family law matter in Southwestern Pennsylvania, call our Pittsburgh family law office to set up a personal consultation with an experienced divorce lawyer.  Please do not comment anonymously, and do not post anything that you consider confidential.  We try to be responsive to commentary and questions, but know that posting here will not create an attorney/client relationship and that we will not offer legal advice via the Internet.

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