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How to decide whether to file for a fault-based divorce

When you are going through a divorce, it is easy to blame the problems of your marriage on your soon-to-be-ex spouse. You may be justified in placing blame, if he or she cheated or treated you badly. In Pennsylvania, you can file for no-fault or a fault-based divorce. However, even if your former spouse cheated, filing for a fault-based divorce may not be in your best interests.

Pennsylvania law allows couples to get a divorce by mutual consent. Pursuing this type of divorce is usually much easier than fault-based divorce because there is no burden to prove acts that show fault. It can also avoid unnecessary legal proceedings and delays. Additionally, proving fault does not affect how the court divides marital property in Pennsylvania.

Grounds for fault-based divorces

To prove a fault-based divorce in Pennsylvania, a spouse must have committed adultery, been incarcerated, deserted you, treated you in a cruel and barbarous way, married someone else, or committed indignities. Insanity is grounds for a divorce, but it is not recognized as a fault-based reason for divorce.

Demonstrating your former spouse committed these acts can be difficult. For desertion, the spouse must be absent for a year or more before you can make the claim. If you want to prove cruel and barbarous treatment, you must show your former partner acted in a way that endangered your life or could have caused you serious harm. For filing a fault-based divorce due to incarceration, your spouse needs to have been in prison for at least two years. To prove adultery, you might need to hire an investigator to uncover evidence that your spouse had the opportunity and the desire to stray.

Separate proceeding for fault-based divorce

When you file for a fault-based divorce, there is a separate court proceeding that is presided over by a court official known as a master. The master determines if your case against your spouse proves they were at fault. However, more than just having evidence of fault, you need to demonstrate the act destroyed the marriage, and you did not do anything to cause this behavior. The master then submits a recommendation to the trial judge, based on his or her decision.

Reasons to file for a fault-based divorce

Despite the drawbacks, there are some reasons you may want to file for a fault-based divorce. For most of these divorces, there is no waiting period before you can file. For mutual consent divorces, you must wait 90 days before executing your consents. If there are serious issues in the marriage, like abuse, pursuing a fault-based divorce may be your safest option. Additionally, fault is one factor that the court considers in the award of alimony. 

If you are still unsure what type of divorce to pursue, you should consider contacting a family law attorney. An attorney will walk you through your best options and can represent your interests during divorce proceedings.

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