By Brian Vertz

History. Prior to 1980, Pennsylvania was one of a handful of states that did not grant no-fault divorces. To obtain a divorce in Pennsylvania prior to 1980, an individual had to demonstrate that his or her spouse was insane, impotent, adulterous, abusive, or other criteria for obtaining a fault divorce. Fault hearings were contentious and unpleasant for litigants and judges, who were forced to consider “he said-she said” testimony and circumstantial evidence. 

Today. The Pennsylvania Divorce Code of 1980 eliminated the need to demonstrate fault, and today, the vast majority of divorces granted in Pennsylvania are no-fault divorces. There are two methods of obtaining a no-fault divorce in Pennsylvania:

(1) Mutual consent. If both parties consent to a divorce, one of the spouses will file a divorce complaint to commence the proceeding. The spouses are required to wait for a 90 day “cooling off” period before filing affidavits stating that they wish to be divorced. At that point, the court may enter a simple divorce, divide the marital property, and determine alimony, counsel fees and other economic claims in divorce. Many couples use the 90 day waiting period to negotiate a settlement.

(2) Unilateral. If one of the spouses does not consent, then the individual who seeks a divorce must wait for two years from the date of separation. Some spouses withhold their consent for legitimate reasons (such as religious or moral objections to divorce); others withhold their consent for strategic reasons. A dependent spouse who has not committed fault can withhold consent in order to collect support for the two year waiting period. The court cannot commence proceedings to divide the marital property or determine alimony, counsel fees and other economic claims until the two year separation period has elapsed. This “foot-dragging” technique is sometimes used to leverage a better settlement from a spouse who is eager for a divorce.

“Separation” occurs when the spouses begin to live separate and apart from each other (even if they continue to reside under the same roof). Pennsylvania does not formally recognize “legal separations” between spouses. It is clear that a separation has occurred when one of the spouses files a divorce complaint or moves out, but it is less clear when the spouses continue to cohabit and do not commence legal proceedings.