3301(d) Affidavit and Counter-Affidavit
Most parties pursuing divorce will choose to proceed with no-fault grounds for divorce. A no-fault divorce simply means there has been an irretrievable breakdown of the marriage. There are two different ways to establish an irretrievable breakdown of the marriage under the Divorce Code. First, both parties may consent to the divorce after 90 days from when the complaint was filed and served. This is referred to as a 90-day mutual consent divorce. Alternatively, if one party won’t consent, the other party can move forward after the parties have been “separated” for two years. This is referred to as a 2-year separation divorce.
Procedurally, both parties must sign an affidavit of consent for a mutual consent divorce under Section 3301(c). For a divorce based on two year separation under 3301(d), one of the parties must file an affidavit of separation and then serve the other party with the filed affidavit as well as a counter-affidavit.
The counter-affidavit allows the other party to object to the date of separation or the assertion that the marriage is irretrievably broken. In addition, the counter-affidavit now also allows the other party to signal to the court the status of any economic claims pending. Specifically, a party can indicate if they wish to claim economic relief prior to finalization of the divorce, or if economic claims have been raised but not yet resolved. The right to claim economic relief incident to the marriage relationship is lost once a final divorce decree is entered. The counter-affidavit alerts the parties of the necessity of filing timely claims as well as how they should be filed. If the counter-affidavit is not returned within 20 days the divorce may proceed based on the date presented in the 3301(d) affidavit. A hearing on economic claims can be requested if issues have been raised; otherwise, a divorce decree can be entered.
