By Barbara Ann Mohajery, Esquire
Mohajery & Associates, PC
Prior to 1980, divorce was only possible if someone did something “blameful”, thereby giving the other person “grounds” for divorce — e.g., adultry, desertion, insanity, subjected the other spouse to indignities, incarceration. Of course, once the finger of blame is pointed at someone, then the person pointing the finger must prove his or her claims. How does one go about that? By presenting his or her case in a court of law with lawyers, witnesses, expert witness reports, expert testimony, etc. All of this costs a great deal of money and, at the end, the decision is left up to the judge deciding the case.
In 1980, Pennsylvania enacted the Divorce Code in which a new “ground” for divorce appeared — “irretrievable breakdown” of the marriage. In other words, one party alleges — or both parties agree — that the marriage is irretrievably broken. No fault is attributed to either party; hence, “no fault” divorce. All of the old fault grounds still exist but, with the advent of no-fault divorce, it is the unusual case where parties obtain a divorce based upon fault.
Creating the means by which parties may obtain a no-fault divorce, however, in no way signifies the Commonwealth’s intent to encourage it; thus, certain “safeguards” are built into the procedure to ensure that divorce, in fact, is the last resort for both parties.
1. The “3301(c)” Divorce. Section 3301(c) of the Divorce Code provides for no-fault divorce when both parties are willing to consent to it. First, one of the parties must file the complaint for divorce and serve it upon the other party. Once service has been made, the parties must wait at least 90 days before they may file the paperwork necessary to obtain the divorce. Nothing happens automatically at the end of the 90 days; i.e., you are not divorced after the 90-day period has expired! The 90-day waiting period is the amount of time which must elapse before the parties will be permitted to proceed with their divorce. Once this has happened, the necessary paperwork must be filed and the divorce decree will issue shortly thereafter.
2. The “3301(d)” Divorce. Section 3301(d) of the Divorce Code provides for no-fault divorce when one party wants the divorce, but the other does not. In this case, the party who wants the divorce must wait at least two (2) years from date of separation before that party may begin to process the paperwork necessary to obtain a divorce without the consent of the other party. Again, you are not divorced automatically after 2 years has elapsed!
Cautionary note: Absent special circumstances, if either party raises a claim for equitable distribution, alimony and/or other related claims, divorce will not be granted until those claims have been resolved.
Further cautionary note: If you do not raise claims for equitable distribution, alimony and/or certain other claims related to divorce before a divorce decree is entered, you will forever lose your right to raise those claims..
