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In every case of divorce, one of the two spouses first brings up the subject. Sometimes, the other spouse is immediately on board with the idea, even to the point of trying to claim that they decided at the same time to end the marriage. Other times, the other spouse may be surprised or shocked (or pretend to be) or angry and state that any divorce action will be contested.

So, you want a divorce, but your spouse does not… What are your alternatives? In Pennsylvania, we have fault divorce (for the last couple hundred years) and no-fault divorce (since 1980). Either type can be contested and, if your spouse does not want a divorce but you do and your spouse intends to be uncooperative and/or to fight the divorce, you have a contested divorce.

Here I address a common urban myth which holds that if you are separated over one year (was two years and three before that), your spouse cannot contest or stop the divorce. That is NOT Pennsylvania law and never has been. This is the USA where everyone gets his/her day in court (if you want it). I know, I know, your friend told you that it’s automatic and you have seen the same thing on TV and in magazines while in line at the market and heard it on the radio and saw it online. ALL of that, and I mean ALL of that is just flat out wrong. Believe half of what you see (or read) and none of what you hear we were admonished by good old Ben Franklin, and he was right (although many believe Edgar Allan Poe said it, the point is well made indeed). I had a client separated 58 years from his wife and, yes, she could have still contested his divorce… and would have needed no reason to do so.

Back on track. For a CONTESTED no-fault divorce to be granted, first you would have to have been living separately and apart for every day of at least the past one year. (Yes, used to be two years and three years before that.) Then you would have to have a hearing to prove it. That sounds simpler than it is, particularly if your spouse has a skilled attorney. Claims would be made, unfounded or not, over money and assets. The judge could divide them from the fight over separation length (which is called bifurcation) or keep them in play until resolved. Those are the legal niceties in general terms. The real issue is paying for all of that to happen. Spending would easily go into low to moderate five figures, and with no guarantee of the outcome. If you spend that money and win, an appeal is possible. That adds several years and thousands more and an uncertain result. Have at it if you have the desire and the funds. Accordingly, if you are separated for over one year, our law says you will get your divorce; however, your spouse can easily drive up the cost and time involved. No free lunch.

What about a CONTESTED fault divorce? That process makes a contested no-fault divorce look like a picnic in comparison. First, you need grounds, so let’s talk about “indignities”, Pennsylvania’s version of the television divorce’s “incompatibility”. In an uncontested indignities divorce, you give testimony stating that your spouse offered to your person such indignities as to make your life burdensome and your condition intolerable. As this example is uncontested, your spouse would not be at the hearing and just a few light smears against your spouse’s behavior would be good enough. Ah, but now we’re all present in open court and you are required to prove “a deep estrangement and a settled hatred”. Take a moment to consider those words. Really deep, heavy stuff. Both of you will be calling witnesses to bolster your cases. What fun… The same fight over money and stuff will be involved, of course, and the overall expense could easily be twice that of a contested no-fault action. And, yes, even if you win, your spouse could still appeal.

So here is what it all boils down to: If you want a divorce but your spouse does not, if your spouse simply fails to act, sooner or later, you will be divorced; however, if your spouse decides to contest, it could be years and many thousands of dollars before you are single. Keep this in mind: For a truly low-cost, simple, uncontested no-fault divorce, you both must be and remain available and cooperative, no matter how long you may be separated.