What, Why, When, & How - Changes in Pennsylvania's No-Fault Divorce Code
In October of 2016, Pennsylvania Governor Tom Wolf signed off on House Bill 380 of 2015, effectively reducing the wait period for a no-fault divorce under the “Irretrievable Breakdown” provision of the Divorce Code from two years after the spouses separate to only one. This new law became effective in December of 2016.
What Has Changed: Pennsylvania is a no-fault divorce state. What that means is under Pennsylvania law, parties wishing to seek a divorce no longer need to prove some type of "fault" of either party (think of the bad boys such as adultery, bigamy, desertion, imprisonment, or even cruel and barbarous treatment). Instead, parties may file for divorce under 3301(c) or 3301(d) of the Divorce Code: Mutual Consent or Irretrievable Breakdown. Under the Mutual Consent provision, the parties are not required to have been separated for any particular length of time; however both parties must be in agreement and willing to sign the consent forms for a divorce decree to be entered. Even when both parties are in agreement under this provision, the parties must wait at least 90 days from the date of filing for divorce before a decree can be entered formally (and sometimes finally) breaking the parties marital contract. If either party refuses to sign, the moving party must then pursue a no-fault divorce under the Irretrievable Breakdown provision or Section 3301(d) of the Divorce Code.
“Irretrievable breakdown" is defined as estrangement due to marital difficulties with no reasonable prospect of reconciliation. 23 Pa.S.C.S.A. § 3103. While this may seem easy enough to prove, under 3301(d) the parties must also have lived separate and apart for the statutory period of one (1) year. Before, the parties were required to have lived separate and apart for a minimum of two (2) years. This is what has changed. While a divorce is never "automatic" and requires action by the parties at the end of the statutory period, if either party is not willing to sign off on a divorce, this allows for the court to step in and essentially say, "too bad" - this action is now ripe for entry of a divorce decree.
Why It Matters: Under the newly passed law, the divorce-filing spouse in Pennsylvania may obtain a divorce without the other party's consent after living separate and apart for one (1) year. What this means for the moving party seeking a divorce, the waiting period for a divorce is now cut in half. This can have a huge impact on those under an obligation for spousal support or alimony pendente lite during the waiting period. In other words, your monthly support obligation and/or payment may now be cut 12 months short. This may also eliminate other obligations that remain an issue for the parties such as maintaining health insurance for your spouse. For parties where support obligations may not be an issue, cutting down the wait period may still be extremely important for non-financial reasons like simply wanting to move on and be free from your marital contract.
When It Matters: Under this new provision, the determining date is the date of separation. Because this law became effective in December of 2016, all divorce pleadings citing irretrievable breakdown of the marriage where the parties have lived separate and apart after December of 2016 will follow the new one (1) year mandatory waiting period requirement. If you and your spouse separated before December 2016, unfortunately you will still be required to wait two (2) years until the entry of a divorce decree is appropriate. Hang in there.
How You Prove It: As you can imagine, for the reasons discussed above, the date of separation can be a big financial factor in your divorce and thus can become a contested issue. Under the Divorce Code, living “separate and apart” does not simply mean that the parties must reside in two separate households (although this is obviously the easiest way to prove separation). Here's how you prove it: If there is a dispute over when the spouses began to live separate and apart for those still living under the same roof, a party may produce evidence to show that the parties no longer engaged in actions of cohabitation after a certain date such as having sex, sharing dinners together, sharing transportation, performing household chores together, sharing finances, enjoying family vacations together, and no longer holding themselves out to others as husband and wife. If proven, the parties may be considered living “separate and apart” for unilateral, no-fault divorce purposes. Furthermore, in the event a complaint in divorce is filed and served on the other party, it shall be presumed that the parties commenced to live separate and apart not later than the date that the complaint was served.
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