Tag Archive for: no-fault divorce

90 day Mutual Consent Divorce

A no-fault divorce means that neither party is asserting that the other party did something wrong. Instead, the assertion is that the marriage is simply irretrievably broken. In Pennsylvania, a no-fault divorce may be granted after a waiting period of 90 days provided both parties consent to the divorce at the conclusion of the waiting period. This waiting period is often referred to as a cooling-off period. It is utilized to give the parties an opportunity to reflect on the severity of the decision to get a divorce and/or seek marital counseling to see if the relationship can be saved. The 90-day waiting period begins to run from date of service of the Complaint in Divorce.

At this point, almost half of the states have some waiting period between when you file and when you can be divorced however, there does not appear to be any correlation between the length of the cooling off period versus the rate of divorce. New Jersey and Arkansas have longer waiting periods for a no-fault divorce. New Jersey has one of the lowest divorce rates in the country while Arkansas has one of the highest divorce rates. Pennsylvania does specifically indicate its policy behind the mandatory waiting period is to “encourage and effect reconciliation and settlement of differences between spouses” as the “protection and preservation of the family is of paramount concern.” 23 Pa. C.S. 3102.

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One Year Separation for Divorce

On September 27, 2016, the House and Senate finally signed off on House Bill 380 which reduces the separation requirement for divorce in Pennsylvania from two years to one year. This version of the bill had been in the works for nearly two years with its initial introduction to the House occurring in early 2015. The House passed the bill by November 2015. The Senate finally passed the bill on September 26, 2016 after having received it for consideration last November. The bill is presently waiting for signature by Governor Tom Wolf. Once signed, the new law be effective in 60 days. Some parties contemplating divorce may want to consider waiting until the new law is effective prior to filing for divorce to be able to finalize their divorces quicker in the absence of mutual consent.

Pennsylvania will join neighboring jurisdictions who already have shorter waiting periods for divorce. New York, Ohio, and Maryland require only one year of separation. New Jersey and Delaware only require six (6) months of separation. The Pennsylvania Bar Association (PBA) played a significant role in pushing for the passage of the bill. According to the PBA, there has actually been a decrease in divorce since many neighboring states have allowed divorce after only a minimum period of separation. Additionally, a shorter separation period will allow the parties to move on with their lives quicker with less emotional and financial strain as well as promote the best interests of minor children in decreasing the period of uncertainty.

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Affidavit of Consent

Under Section 3301(c) of the Divorce Code, one way to obtain a no-fault divorce is by mutual consent of the parties ninety (90) days after filing and service of the divorce complaint. This is often the quicker option for a no-fault divorce however it is contingent on both parties signing the consent. Case law provides that a party cannot be forced to consent. This is true even if the party previously entered an agreement indicating they would timely consent to the divorce. The court has stated “[a] person has an unqualified right to change his or her mind and refuse to consent to be divorced, at least, as here, where the consent, though signed, has not been delivered or filed.” Berman v. Berman, 33 Pa. D. & C.3d 134 (1983). This position supports the Divorce Code policy of preservation of marriages wherever possible.

There is also the potential that an affidavit of consent could be withdrawn even after having been filed with the court. This is only possible if the court grants the request for withdrawal. The courts have previously referred to Rule 1920.42(c) as granting the power to deny a petition to withdraw consent. The rationale being that an affidavit of consent could always be withdrawn and there would be no reason to seek the court’s permission if withdrawals were automatic. Instead, the court laid out a standard to be used when determining whether to allow withdrawal which examines whether the affidavit was signed under duress, fraud or undue influence. Duress would include threats of physical harm or actual harm. Fraud, which must be established by clear and convincing evidence, would demonstrate a misrepresentation with the intent to induce signature to an affidavit of consent. Finally, undue influence is influence obtained by excessive persuasion or other means such that the other party lacks free will and is unable to refuse. In addition to the above factors, the court should also look at the totality of the circumstances in order to effectuate justice among the parties and fulfill the intent and purposes of the Divorce Code.

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