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Legal Eagle: Finding fault under Pennsylvania's `No Fault' divorce law won't help case

Thursday, March 15, 2001

By Patricia G. Miller

Pennsylvania, like most states, has a "no fault" divorce law, meaning misconduct or fault during marriage means very little in divorce cases. Fault might be worth a cup of coffee if you also kick in 50 cents.

It wasn't always like this in Pennsylvania. In the old days, between the 1700s and 1980, fault was, quite literally, the only thing that mattered. Assets, income or the economic needs of either person were irrelevant. The court could not even consider them in a divorce proceeding.


Patricia G. Miller is the permanent equitable distribution master for the Family Division of the Court of Common Pleas of Allegheny County. Her views do not necessarily represent those of the division or its judges.


Back then, fault was the only way out of a bad marriage. If your spouse beat you, cheated on you, was convicted of a crime, abandoned you, abused your children, or just said bad things about you to other people, you could get a divorce based on that bad conduct.

There was only one caveat: You had to prove that you had not been naughty. If you wanted a divorce, you had to be both injured and innocent. If you had similar moral lapses, no divorce.

Even if you got out of this horrible marriage, there were no economic benefits like spousal support or a share of the property. Even the most egregious fault had no legal impact on economic issues because the courts couldn't distribute property. Whoever had title to the car, house, bank account or pension owned it, and no court could change that.

Now fast forward to 1980, when Pennsylvania enacted its new divorce law, which came to be called "no fault divorce." In the three big areas of divorce law (the divorce itself, the division of property and the award of alimony), fault is now all but irrelevant.

Fault is still a ground for divorce, but it's like buggy whips, Edsels and TV rabbit ears: a historical oddity. Why? Because now you can end a bad marriage for any reason. You don't have to paint your former partner as a villain and yourself as a saint.

Unfortunately, many people have a hard time accepting this, insisting that all the bad things their former spouse did should help their case in court.

Take property rights. Here is where the spouses that I see hope fault will be important: He beat me for 25 years so I should get all or most of the property we got in those 25 years. Or, she ran around and didn't cook so she should get nothing.

Not so. While it may symbolize the most important failings of the marriage, the court doesn't care. Why? Because, the current divorce law says it can't care. It specifically says the judge must divide property without regard to marital misconduct.

So far, in two out of three areas of divorce, fault is worth less than a cup of coffee. What about the payment of alimony? Here divorce law provides for the possible payment of alimony, but only if necessary.

The law lists 17 factors to be considered, including these economic factors: earning capacity, sources of income, whether a property inheritance is expected and whether the earning capacity of the custodial parent of a minor child is affected.

The one noneconomic factor is number 14, the marital misconduct of the parties. I submit that you still need 50 cents to make fault worth anything. Why? Because fault is, at best, one of 17 factors. Further, it leaves unanswered whose fault ought to count, the one getting alimony, the one paying it or both.

Many litigants refuse to hear their lawyers telling them that fault is irrelevant. Instead, they hear their parents or grandparents telling them that fault is all there is. Sure, they love and respect their parents and grandparents, but on this one their lawyer is the one they need to listen to.

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