This article originally appeared on Business Intelligencer by Stephanie Stecklair on July 12th, 2016.
Prior to the 1980 amendments of the Pennsylvania Divorce Code, parties were only able to obtain a divorce by establishing fault grounds under Pa.C.S. 23 Section 3301(a), i.e., desertion, adultery, cruel and barbarous treatment, bigamy, imprisonment for more than two years and indignities. We do not encounter many divorces that proceed under fault grounds because they require far more time and money to establish grounds.
The statutory incorporation of no-fault grounds in 1980—institutionalization, mutual consent and irretrievable breakdown—allowed Pennsylvania to join the rest of the country by addressing divorce in a more modern and realistic view. Today, the two-year separation requirement in a unilateral no-fault divorce remains one of the longest in the surrounding states and seems to reflect the paternalistic notion that parties should not divorce in the hope that a longer separation period will incite resolution.
In the majority of cases, the separation period does not incite more resolution; but, rather, prolongs what is often the inevitable. If the original purpose of two-year separation was to foster resolution, this goal can still be achieved by shortening the separation. Where a no-fault divorce is sought, courts can require up to three counseling sessions if requested by either party under Pa.C.S Section 3302; surely those sessions can be achieved within a year.
The most common no-fault grounds cited to in divorce are mutual consent, or uncontested, under Pa.C.S. 23 Section 3301(c), which involves a 90-day waiting period; and irretrievable breakdown, or contested, under Pa.C.S. 23 Section 3301(d), which involves a two-year waiting period. When a party initiates a divorce citing irretrievable breakdown, the court may grant a divorce where the complaint alleges that the marriage is irretrievably broken and an affidavit alleging that the parties have lived separate and apart for a period of at least two years has been filed and served.
In 2015, Rep. Tarah Toohil, R-Luzerne, introduced legislation, now known as House Bill 380. If passed, the length of time required for separation in a contested no-fault divorce would be reduced from two years to one, which is identical to New York and Maryland. In New Jersey and Delaware, the waiting period is six months; in West Virginia, there is no waiting period. The House of Representatives passed House Bill 380 and it is currently on the table in the Senate.
In support of this legislation, Toohil, an attorney, references the positive impact it would have in custody litigation, in addition to promoting faster resolution of economic issues. The Pennsylvania Bar Association’s family law section also provided the House Judiciary Committee with a detailed analysis explaining their support of and rationale for the bill even though they acknowledged concern that shortening the length of time for unilateral divorce to one year does not value marriage. Reducing the period of separation would relieve the strain on our court dockets and perhaps begin to put us on equal footing with New Jersey, where divorce procedure is incredibly efficient.
While reducing the period of separation does afford significant emotional benefits to individuals, it can also result in a quicker loss of health insurance coverage for the dependent spouse, as well as loss of the “married, filing jointly” tax status. A reduction in length of separation also has the potential to affect spousal eligibility for social security retirement benefits. If parties are divorced but the marriage lasted 10 years or longer, the lower-income spouse can receive benefits from his or her former spouse as long as the former spouse is entitled to Social Security retirement or disability benefits and the lower-income spouse has not remarried, is 62 or older and the benefit based on work history is less than what would be received on the higher-earning spouse’s income, (see https://www.ssa.gov/planners/retire/divspouse.html). So, if parties have been married for eight years and the higher-earning spouse initiated a divorce pursuant to Section 3301(d), that is definitely a reason to consider a lengthier separation period and to delay processing a final decree.
Currently, the process of proceeding with a contested no-fault divorce pursuant to irretrievable breakdown can be agonizing for the initiating spouse, let alone on the children involved. Divorce in Pennsylvania is not for procedural novices—after filing a complaint citing to irretrievable breakdown, you must achieve service, serve a Section 3301(d) affidavit, wait the requisite time period for the counter-affidavit, and so on until grounds have been established and then maybe, just maybe—if you haven’t been successful in settlement negotiations—you can petition the court for a hearing before a divorce master. The process can be long, arduous and costly. While reducing the length of separation shortens this timeframe, it will not necessarily make the process any easier for litigants. Even with economic and custody issues settled, the procedural wait and delay hangs over the parties’ heads. The words, “you’re divorced,” can have a significant impact on clients, representing that “this chapter is over; now you can move on.”
A number of past clients and some current come to mind when considering HB 380. Most, if not all, would be grateful for the opportunity to get on with their lives one year sooner. Conversely, there are parties who do not want to divorce and drag their feet, whether to get back at a cheating spouse who wishes to remarry or from fear of facing financial and perhaps health issues on their own.
There is also an argument that there is no benefit to receiving support pre-divorce, e.g., spousal support or alimony pendente lite. The divorce process in Pennsylvania is not quick. A lower wage-earning spouse may not be able to wait for support until after the divorce. Even for consenting parties, decrees are not entered overnight. Toohil has argued that “the perceived economic benefits of the two-year waiting period for a dependent spouse is not the reality. The length of alimony received after the divorce is finalized, is generally reduced by the duration of support paid from separation to date of final decree.”
The bottom line is that a one-year waiting period also offers faster closure by reducing turmoil for many children who live with great uncertainty regarding the future while their family is in limbo. Uncertainties include such matters as future custody schedules, housing arrangements and school placement. Parents with unresolved divorce issues often are unable to conquer the unique challenges of co-parenting as successfully as divorced couples.
By shortening the requisite separation period, parties will be able to settle their economic issues sooner, spend less on legal costs if represented, and hopefully reduce litigation and conflict in an already inundated court system. Passage by the Senate and enactment of HB 380 is a must.