Divorce Waiting Period in PA
I recently spoke to a client on the phone about his divorce, and he asked me “Do I really need to wait one-year before I can be officially divorced?” I hesitated before giving him an answer that lawyers are notoriously known for: It depends. Pennsylvania is a no-fault state which means neither spouse needs to prove “fault” or marital misconduct on the part of the other. To obtain a divorce, a spouse must merely assert incompatibility or irreconcilable differences, meaning the marriage has irretrievably broken down. However, grounds for a no-fault divorce must still be established.
Grounds for a no-fault divorce can be established two ways. Pursuant to Section 3301(c) of the Divorce Code, parties can execute Affidavits of Consent after 90 days have expired from the date that the Divorce Complaint was filed and served upon the other party. If both parties file Affidavits of Consent, they have established grounds for divorce and can request a Divorce Decree assuming they have resolved all issues involving the division of property and alimony and any other remaining issues. Parties can reach a resolution of these issues while the 90 days are tolling so it is, theoretically, possible for a couple to be divorced very soon after 90 days. But, what if one of the parties is not willing to consent to a divorce? Pursuant to Section 3301(d) of the Divorce Code, either party may request a divorce after they have been separated for a period of one-year. After one year, the party requesting the divorce may file an affidavit alleging that the parties have been separated for at least one-year. The other party’s consent or participation is not required.
So, to circle back to my client’s question about having to wait one-year before he can be divorced. If his spouse is unwilling to consent to the divorce and they just recently separated, then yes, he must wait one-year before he can establish grounds for divorce and move his divorce forward toward conclusion. Now, that does not mean that nothing can be done during that one-year. If willing, the parties can attempt to resolve outstanding issues. However, the non-consenting party is not legally required to do anything during that one year and can “stall” the divorce. My client asked me if there was any way to “get around” the one year waiting period. As I mentioned earlier, the parties must have been separated for at least one-year. The term “separated” has its own meaning in the family law world and it is possible that a couple has been separated before they stopped living together and, thus, perhaps a party will not have to wait a full year.
— Written by Melissa Iacobucci, Esq.
DISCLAIMER: The contents of this blog are not legal advice, and are not to be used for that purpose. If you are faced with a legal matter, you should contact a lawyer immediately in order to ensure that you are protected.