I live in Pennsylvania and I’m thinking about divorcing my spouse. Does it matter why I want the divorce?
Yes, it does. The reason you want a divorce, which is also known as the “grounds” for divorce, has always been important to Pennsylvania’s courts.
For many years, Pennsylvania was exclusively a “fault” state. This meant that in order to get a divorce in Pennsylvania, litigants had to prove to the court that one spouse was guilty of some kind of wrongdoing (“marital misconduct”). For example, one spouse might prove that the other committed adultery or was physically abusive.
But over time, this changed. Many American states moved to a “no-fault” divorce model, where the only grounds that have to be proved are that one of the parties truly believes the marriage has broken down and can’t be saved; this ground for divorce is commonly referred to as "irreconcilable differences" or irretrievable breakdown." It’s not necessary for both parties to agree that the marriage is over. It’s enough for one to believe the marriage is beyond repair.
Pennsylvania adapted to the changing times by keeping most of its fault laws, but adding a no-fault component. This means that if you live in Pennsylvania and you’re planning to get divorced, the first thing you’ll have to decide is whether you want a no-fault divorce, or you want to try to prove fault.
How do I get a no-fault divorce?
There are two ways you can get a no-fault divorce in Pennsylvania.
First, the Pennsylvania Divorce Code says that if you have lived “separate and apart” for two years, and your marriage is “irretrievably broken” (meaning, it has broken down and you don’t believe it can be saved), then the court can grant the divorce. Living “separate and apart” means more than just living in different places (although you must live apart and cease sexual relations). It means that you made the decision to live apart because you intended to end the marriage, and you communicated that decision to your spouse. The reason for the separation must be serious problems in the marriage and not some other factor.
After the two years is up, you can file an affidavit (a sworn statement) with the court and request that a divorce be granted or denied. If the court decides there is a reasonable chance that the marriage can be saved, it will continue (put on hold) the proceedings for between 90 and 120 days and order both spouses into marriage counseling. If after completing counseling, one of the spouses still doesn’t want to reconcile, the court will find that the marriage is irretrievably broken and grant the divorce.
Second, if you don’t want to wait two years, both of you agree that the marriage is irretrievably broken, and you both want to be divorced, then one of you can file and serve a divorce complaint which establishes that the marriage is irretrievably broken. This is known as “mutual consent.” After 90 days, the court will grant your divorce request unless you are still arguing over issues involving property or your children, in which case those problems will have to be litigated and decided by a judge. In the end, however, you will be divorced. If you don’t disagree about the terms of your divorce (like property or children), Pennsylvania law doesn’t require you to come to court for a hearing. The judge will simply sign your divorce papers.
My spouse and I were living apart, then we got back together. But our reconciliation failed. What does this mean for the divorce?
This situation has a significant impact if you are seeking a divorce under the “separate and apart” law. The two-year separation period is as long as it is because the State of Pennsylvania wants to make sure spouses have enough time to rehabilitate their marriages before obtaining a final divorce decree. If you reconcile with your spouse and “resume cohabitation” (meaning, you live together as a married couple again), then your reconciliation “tolls,” or stops, the separation period. If the reconciliation fails, you’ll have to start the two year period again, even if you stipulated (agreed) otherwise.
I think my spouse committed marital misconduct and I want to pursue a fault-based divorce. What do I need to prove to the judge?
If you decide to pursue a fault-based divorce, you will need to prove two things: first, that you are the “innocent and injured spouse” (meaning, you were wronged by your spouse’s misconduct) and second, that your spouse committed one of the following wrongful acts:
- desertion (a willful and malicious absence from the marital home, without any reasonable cause, for one or more years)
- adultery
- cruel and barbarous treatment that endangered your life or health.
- bigamy - your spouse entered into a second (bigamous) marriage while still married to the first spouse
- was convicted of a crime and sentenced to imprisonment for two or more years, or
- inflicted indignities upon you that made your life intolerable and burdensome.
My spouse has a serious mental illness. Is the illness grounds for divorce?
Possibly. It all depends how serious your spouse’s medical condition is. If your spouse has been confined in a mental institution for at least 18 months immediately preceding (right before) the initiation of the divorce and there’s no reasonable chance of your spouse being discharged from impatient care in the next 18 months, then the judge can give you a divorce on grounds of your spouse’s serious mental disorder.
You can create a presumption (a strong legal assumption that the judge has to make) that your spouse won’t be discharged from inpatient care if you can obtain a certificate stating that from the superintendent of the hospital where your spouse is confined. You’ll also need to get a support statement from the physician who is actually treating your spouse.
Additional Resources
For the grounds for divorce in Pennsylvania, see the Pennsylvania Divorce Code from the Pennsylvania General Assembly.
