Divorce 101 – The Basics in PennsylvaniaDecember 3, 2012
With the holidays upon us, no one wants to discuss or think about the big “D”, although it may be something that is weighing on folks out there. When meeting with clients during this time of year, I often times hear clients say they want to wait until after the holidays to file, while some client would rather have the pressure off their shoulders for the holidays. Regardless of the decision people make, its important that they know the basic divorce procedure, or what we in our office like to call, Divorce 101.
Pennsylvania is a “no-fault” state, which means that a party does not have to be at fault for the break-up of a marriage in order to get a divorce. In fact, when pursuing a no-fault divorce, fault is irrelevant. However, a person can still file a fault based divorce, which will be discussed more below.
A no-fault divorce is initiated when one party files a Divorce Complaint. After the complaint is filed, it is served on the other party, typically by certified mail. Once it is served, the parties wait 90 days. After 90 has passed, if both parties agree to the divorce, they both sign what is called an Affidavit of Consent consenting to the entry of a divorce, and usually a Waiver of Notice, which is required to waive a 20 day waiting period before finalizing a divorce. Both of these document are then filed with the court and as long as both parties consent, the divorce be finalized.
You can still proceed with a no-fault if is one party does not want to sign a consent. In this case, if one party is not willing to execute an Affidavit of Consent, then the party wanting to pursue the divorce will have to wait until the parties have been living separate and apart for two years. After two years, it is not automatic, but it allows the party to proceed with the divorce whether the other party wants to or not. I’m sure two years seems like a long time, but in reality, it can sometimes take that long just to get through the division of property.
So, you may ask where fault grounds come into play? Typically, people will pursue a fault divorce when one party is not willing to consent, and the other party does not want to wait the requisite two years. Although it does not happen often, if a person pursues a fault divorce, in order to proceed, a hearing is held to determine fault. If the court finds that a party was at fault for the break-up of the marriage, then grounds have been established and the parties can proceed with their divorce.
What may not be clear from all of this is that the process for getting a divorce does not include dividing a couple’s assets. In fact, procedurally, it is not all that difficult to get a divorce, the difficulties you often hear from friends, family or by the office water cooler are with the property distribution, which will be addressed more specifically in future articles. However, one thing you want to keep in mind is that you do not want to finalize a divorce until you and your spouse have divided your marital property, either by agreement or after a hearing before a divorce master.
Divorce is a life changing event. While this is a very basic overview of the divorce process, it gives people an idea of what happens when starting down the path of the divorce process.