Grounds for Divorce in Pennsylvania

Divorce: No-Fault Grounds

Mutual Consent - A mutual consent divorce will be granted where it is alleged that the marriage is irretrievably broken and 90 days have elapsed from the date of the commencement of an action and an affidavit has been filed by each of the parties evidencing that each party consents to the divorce. This is known as a Section 3301(c) divorce.

Irretrievable Breakdown - If your spouse is not in agreement, you can use the provision under Section 3301(d) of the Divorce Code, if you have been living separate and apart per the requirements below:

One year separation - If the period of separation began on or after December 5, 2016, you will need to have lived separate and apart from your spouse for at least one year prior to filing your divorce complaint.

The Court may grant a 3301(d) divorce based on an allegation that the marriage is "irretrievably broken" and where the parties have lived separate and apart for the required time frame (noted above), and the Defendant either:

a) Does not deny the allegations as set forth in the affidavit.

b) Denies one or more of the allegations set forth in the affidavit but, after notice and hearing, the court determines that the parties have lived separate and apart for a period of at least the required one or two years (depending on the date of separation) and that the marriage is irretrievably broken.

The address and contact information of the Defendant/spouse must be known in order to successfully use these documents.

Divorce: Fault Grounds

Divorce is the ending of a marriage ordered by a court. In Pennsylvania there are two types of divorce: fault and no-fault. The fault grounds for divorce in Pennsylvania are:

Willful and malicious desertion and absence from the marital home, without a reasonable cause, for the period of one (1) or more years. For all practical purposes, desertion and abandonment are one and the same. There are two elements that have to be present in order to constitute desertion: the willful desire or the intent to desert and the cutting off of the marital relationship. In Pennsylvania, the abandonment has:
- continued for 12 uninterrupted months;
- must be willful and malicious;
- beyond any reasonable expectation of reconciliation.
There are two types of desertion-actual desertion and constructive desertion.

Actual Desertion

When your spouse packs bags, books, and toothpaste, walks out the door, moves into another apartment, and stays there, he or she is guilty of actual desertion. The spouse voluntarily leaves and has no plans to return except perhaps to pick up a forgotten belonging.

Constructive Desertion

You also can be deserted even if your spouse does not leave. If your spouse's behavior is so cruel or despicable that you find yourself dialing suicide prevention, you can leave and charge your spouse with constructive desertion. Constructive desertion is basically defined as one person leaving the relationship-not necessarily the home. The following are some cases of marital misconduct that have been applied to constructive desertion:

Willful refusal of sex, without just cause and nonperformance of other marital duties as to practically destroy the home life. The denial of sex alone does not constitute desertion. The spouse also has to stop carrying out the mutual responsibilities of the marital relationship.

Conduct that endangers a spouse's life, safety, health, and even self-respect (although an isolated assault or two will not necessarily constitute cruelty unless the act was particularly severe and atrocious).

One spouse's failure to move if, for example, the other gets a job transfer. The exception is if one spouse's choice of domicile is unsafe or unsuitable for the other.

If the Deserter Returns

Your spouse has left you, spent six months chasing butterflies, and suddenly wakes up one morning and decides that you are the one after all. In good faith, your spouse shows up at your doorstep and begs you to forgive and forget. In Pennsylvania, if you say yes, then all is well. But if you say no and refuse to even see or listen to your spouse, then, strange but true, your spouse could sue you for desertion. The waiting period would start all over again beginning with the time of your refusal. Keep in mind that "good faith" is the key. If, for example, your husband deserted you and then tried to return only after realizing what the high costs of his alimony and legal fees would be, his desire to return would not necessarily be considered "good faith".
Adultery - Adultery is sexual intercourse between a married person and someone other than the spouse. In Pennsylvania, neither cunnilingus nor fellatio, which the law defines as sodomy, is a ground for divorce and generally neither is considered adultery. The sexual intercourse must involve some penetration of the female organ by the male organ, but a "completion" of the sexual intercourse is not required.
There probably is no such thing as a pleasant adultery case; because names, dates, places, paramours, and the like have to be brought out in the open. If your spouse no longer cares about what you know and is open about the affair, you're lucky. You can then catch your spouse flagrante delicto, which means you have your spouse in the flagrant wrong and may not have to worry about hiring detectives. However, you may still need a detective to prove your case in court. There is still a need for a corroborative witness, such as a mutual friend or neighbor, who has no stake in the matter except telling the court what he (she) witnessed.

How to Prove Adultery

Most adultery cases are proven by circumstantial evidence, which means that you have to establish that your spouse had the disposition and opportunity to commit adultery.

Public displays of affection, such as hand-holding, kissing, and hugging, between the guilty spouse and the paramour are generally sufficient evidence to indicate an adulterous disposition. Opportunity may be proven by showing that your spouse was seen entering the paramour's apartment at 11 P.M. and not coming out until 8 A.M. the following morning and that they were alone. If you can only prove disposition but not opportunity, the courts may not allow your divorce because the court may reason that it is just mere speculation. The same is true if you only show that there was opportunity, but cannot prove disposition. When you think about it, this seems to make sense.

Naming the Co-Respondent

Sometimes known as a paramour, the co-respondent is the person whom you charge as having committed adultery with your spouse. The co-respondent has the right to hire a lawyer and file an answer to your complaint. Naming co-respondents can get sticky, particularly if your facts are incorrect. You might be damaging the reputation of an innocent person.

The Adulterers

Adulterers are not equal under the blanket of the law. In Pennsylvania, adultery may impact custody if the adultery is proven to have harmed or impaired the children. Adultery does not necessarily affect alimony awards in Pennsylvania. It will, however, be a factor for consideration in awarding alimony.

Condonation

Generally, if you knew your spouse committed adultery but continued to live and cohabit with your spouse, then adultery cannot be used as a ground. Once you resume marital relations, after you learned of the adulterous act, the courts feel that you have forgiven, or "condoned," the act. But, if your spouse starts having affairs again, you can then sue on grounds of adultery. Or, if your spouse has had several affairs and you knew of and condoned only one, you may file on adultery regarding the newly discovered affairs.

In Pennsylvania, however, condonation does not necessarily bar the action for divorce; it now only a "factor for consideration."
Extreme cruelty, including any physical or mental cruelty that endangers your safety or health, or which makes continued living together improper or unreasonable.
Sentenced to imprisonment for a term of two (2) years upon conviction of having committed a crime. The conviction can be for either a misdemeanor or a felony in any state.
Imposed such indignities on the innocent spouse as to render that spouse's condition intolerable and life burdensome.
Insanity or serious mental disorder which has resulted in confinement in a mental institution for at least eighteen (18) months immediately before the filing of the complaint, and where there is no reasonably prospect that the spouse will be discharged from inpatient care during the 18 months subsequent to the commencement of the action.
Bigamy - Knowingly entering into a bigamous marriage is also a ground for divorce.

All fault divorces require court testimony and an appearance by the client. No-fault divorces do not require a court appearance. Fault based divorces can affect property division, alimony and legal fees.