What does it mean to establish grounds in a divorce?

ESTABLISHING GROUNDS FOR A DIVORCE IN BERKS COUNTY

When confronted with the prospect of getting divorced, the first thing most individuals think about is dividing up marital assets and debts. It is important to understand that prior to the Court's division of marital assets and debts, the Plaintiff filing for Divorce must establish "grounds" for the Divorce. In short, the Court cannot and will not divide marital assets and debts until such time as "grounds" have been established.

Often times when individuals are getting divorced, both spouses agree to get divorced. When both spouses are agreeing to get divorced, this is known as a "mutual consent divorce". 23 Pa.C.S.A. Section 3301(c) is entitled "Mutual Consent" and states "The Court may grant the divorce where it is alleged that the marriage is irretrievably broken and 90 days have elapsed from the date of the commencement of an action under this part and an Affidavit has been filed by each of the parties evidencing that each of the parties consents to the divorce". Accordingly, if both parties are consenting to the divorce after 90 days from the date the Complaint was served on the other party and if each party files an "Affidavit of Consent", then it can be said that "grounds" have been established for the divorce. This does not mean that the divorce is final - rather, having established grounds for the divorce, the Court now has the power to equitably divide all marital assets and debts.

In a situation where one spouse is not consenting to the divorce, then the Plaintiff must either pursue a divorce pursuant to 23 Pa.C.S.A. Section 3301(d) (meaning the individual must demonstrate to the Court that the parties have been living separate and apart for two years). If the parties have not been living separate and apart for two years, then the Plaintiff in the divorce must pursue fault grounds for the divorce.

Specifically, 23 Pa.C.S.A. Section 3301 outlines the fault-based grounds for a divorce when one party wishes to get a divorce and the other party does not. Specifically, 23 Pa.C.S.A. Section 3301 states "The Court may grant the divorce to the innocent and injured spouse whenever it is judged that the other spouse has: (1) committed willful and malicious desertion in absence from the habitation from the innocent and injured spouse, without a reasonable cause, for the period of one or more years; (2) committed adultery; (3) by cruel and barbarous treatment, endangered the life or health of the innocent and injured spouse; (4) knowingly entered into a bigamous marriage while a former marriage is still subsisting; (5) been sentenced to imprisonment for a term of 2 or more years upon conviction of having committed a crime; (6) offered such indignities to the innocent and injured spouse as to render that spouse's condition intolerable and life burdensome". Section (b) of this Statute states "The Court may grant a Divorce from a spouse upon the ground of insanity or serious illness or has resulted in the confinement in a mental institution for at least 18 months immediately before the commencement of an action of this part, and where there is no reasonable prospect that the spouse will be discharged from impatient care during the 18 months subsequent to the commencement of the action.

So - when one spouse finds him or herself in a situation where the other spouse will not consent to the divorce, that spouse has the option of pursuing a fault-based divorce. There are two very important things to understand about pursuing a fault-based divorce. First, you must demonstrate that you were the "innocent and injured spouse." This means, for example, that you cannot allege that your spouse committed adultery if you also have committed adultery. Second, it is important to understand that, throughout the process of Equitable Distribution, even if the Court finds that one party is entirely "at fault" for the marriage not working out, fault-based conduct has absolutely no impact on the manner in which the Court divides marital assets and debts.

If you have any questions whatsoever as to pursuing a "fault" or "no-fault" Divorce in Berks County, contact Berks County Family Law Attorney Joseph A. Guillama to discuss your options.