Archive for November, 2014

Spotlight Issue: “No-Fault” divorce in Berks County, Pennsylvania

Wednesday, November 19th, 2014

A no-fault divorce begins with the filing of a divorce complaint.  The first requirement for obtaining a divorce in Pennsylvania is that one of the parties has lived in the State for at least 6 months prior to the filing of the complaint.  Pennsylvania recognizes “fault” and “no-fault” divorce.  “No-fault” means that neither party is claiming that their spouse is responsible for the dissolution of the marriage.  The request for a divorce is based on the assertion that the marriage is “irretrievably broken.”  Property and alimony issues must be resolved prior to a divorce decree being granted for a “no-fault” divorce.  If a party fails to raise these issues prior to the issuance of the decree then he or she may have waived the right to address these matters.  Requests for support (child support or alimony), paternity or custody may be made within a divorce complaint.  There are two common methods for obtaining a “no-fault” divorce.

Mutual Consent

The first is by mutual consent and is defined by section 3301(c) of the Pennsylvania Divorce Code.  This is usually the fastest and easiest type of divorce.  In a mutual consent divorce, both parties file affidavits stating that they consent to the divorce.  The affidavits cannot be submitted until 90 days have passed from the date that the divorce complaint is filed.   If a party requests it, the court will order than the parties attend up to three counseling sessions within that 90 day period.  Once the 90 day period has passed and both parties have filed their affidavits, the court can issue a divorce decree without a hearing.

1 Year Separation (2 years for separations which began prior to December 2016)

The second type of “no-fault” divorce occurs when one party does not consent to the divorce.  This type of divorce is defined by section 3301(d)(1)(i) of the Pennsylvania Divorce Code. In this situation, the parties must be separated for at least 1 year (2 years for separations which began prior to December 2016) before the court can issue a divorce decree.   Once the one year period has passed, the party moving for the divorce files an affidavit with the court verifying that the parties have been separated for the requisite period of time and that the marriage is irretrievably broken.  This affidavit must be served on the other party.  The other party can decide not to respond to the affidavit or can file his or her own affidavit denying either than the marriage is irretrievably broken or that the parties have been separated for one year.  If this happens then the court will hold a hearing to determine whether a divorce decree should be issued.  If, during that hearing, the court determines that there is a reasonably possibility that the parties could reconcile, it may continue the case and order that both parties attend up to three sessions of counseling.  If, on the other hand, the other party does not respond to the initial affidavit requesting the divorce, then the court can allow the divorce.

If both parties agree on the divorce proceedings, we can usually obtain a “no-fault” divorce decree for our clients within 4-5 months.  If you are considering filing for a “no-fault” divorce or you’ve already been served with divorce papers, contact us at 610-372-5128 so that we can help.