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NEWS FLASH 10/6/16: The waiting period following final separation for an “irretrievable breakdown” divorce is about to drop from two years to one year, effective December 3, 2016. Read about it here.
It would be nice (well, nice for everyone except divorce attorneys!) if all divorces were simple, straightforward and friendly. Sometimes, though, one spouse refuses to cooperate to obtain a divorce decree. How long does a divorce take, then?
There are many reasons for a spouse to refuse to sign divorce papers. Some of them are sensible, some of them are strategic, and some of them are just plain contrary. Even reasonable people can disagree; add negative emotions and economic dependence into the mix, and the situation can become even more difficult. Reasons for your husband or wife to refuse to sign divorce papers can include anger, a hope of saving the marriage, emotional pain, a desire for economic benefit, or simply being distracted by other matters. A court will never order your spouse to sign divorce consent documents, even if he or she once signed a written agreement to do so; that would go against Pennsylvania public policy supporting marriage and families.
Lack of consent to divorce.
In an earlier article, I wrote a bit about Pennsylvania’s two no-fault grounds: Mutual Consent, and Irretrievable Breakdown. The first of these, Mutual Consent, absolutely requires that both you and your spouse sign documents agreeing to obtain a divorce decree some time after a mandatory waiting period has expired. As the name itself implies, either spouse can bring a Mutual Consent divorce process to a screeching halt simply by refusing to sign the consent forms. There is simply no way in Pennsylvania to force a spouse to sign divorce papers, although in some circumstances there can be negative consequences for the spouse who refuses.
What’s left without mutual consent?
A divorce decree based on the ground of Irretrievable Breakdown requires the court to decide that two things are true: first, that the marriage is irretrievably broken and second, that you and your spouse have been separated for two or more years. Many people in Pennsylvania mistakenly think that divorce is automatic after a separation has lasted for two years, but it is important for you to understand that where family law is concerned very little happens by itself in the court system.
Instead, once you have reached the second anniversary of your final separation, you can sign an affidavit stating the date on which you separated, and that the marriage is irretrievably broken. This paper must be filed with the court and served on your spouse, who then has a total of at least forty days either to deny a two-year separation, to deny that the marriage is irretrievably broken, or to claim economic relief from the court (such as alimony and property division). If your spouse has been properly served with all the necessary documents and then does nothing for a long enough time, the court will assume that your affidavit is true, and will grant your divorce decree shortly after you file the final documents asking for it.
Can my spouse still fight a divorce in Pennsylvania even after two years?
Unfortunately, yes. If your husband or wife claims that the marriage is not irretrievably broken or that you have not yet been separated for two years, the court cannot agree with your affidavit without a hearing. This is true even in extreme cases. Many years ago, I handled a divorce for a woman (separated for more than two years) whose husband had been sentenced to serve a lengthy prison term for terrible crimes committed against his own family. When we served her husband with the divorce documents, he filed a response insisting that the marriage was not irretrievably broken. According to him, his wife did not really want a divorce… and the whole thing was the fault of the state of Pennsylvania for putting him in prison in the first place! We had to go before a judge just to prove that she wanted out of the marriage. We won, of course, but perhaps you can imagine my client’s resentment and frustration at having to face this final barrier.
I don’t want to wait two years. What about fault divorce?
All the old “fault” grounds for divorce — grounds such as brutality, adultery, and infliction of indignities — are still on the books in Pennsylvania. It is extremely rare, though, for anyone to use them, even when someone is at fault for the end of the marriage. I think this is mainly for three reasons: first, because fault can be expensive and hard to prove; second, because the spouse proving fault generally must also prove that he or she is “innocent and injured”; and third, because if there is a no-fault ground also available, that will be preferred over a fault ground. In real-world terms, it means that you don’t just need ironclad proof that will let you establish your fault ground for divorce, you also need a good prospect that going after it will be cheaper than simply letting the two years pass.
Claims for economic relief can extend the duration of the process still further, since (as a general rule) courts will decline even to begin to decide them until either both spouses sign consent forms, or the two years have passed. In the meantime, be sure that you have done what is necessary to survive your separation.
If you need legal assistance with your divorce or family law matter in Southwestern Pennsylvania, call my office to set up a personal consultation with a family legal services attorney. This blog will feature periodic updates. Consider subscribing! Please do not comment anonymously, and do not post anything that you consider confidential. I try to be responsive to commentary and questions, but know that posting here will not create an attorney/client relationship and that I will not offer legal advice via the Internet.
Michael B. Greenstein
1789 S. Braddock Avenue, Suite 570
Pittsburgh, PA 15218