Family Law

"IS IT TRUE THAT I WILL BE DIVORCED 90 DAYS AFTER I FILE?" and "WHAT'S A LEGAL SEPARATION?"

By Fox Rothschild

Ask any divorce lawyer in Pennsylvania to specify the two most common questions he or she might encounter in an initial interview and the answer will inevitably include one or both of the questions recited in the title.

The second question is easy to answer. It is pretty safe to say that it is impossible to be divorced in the first ninety days after a divorce is filed.  The law is clear. For the first ninety days after a divorce complaint is served (and service must come after the complaint is filed) neither party is eligible to consent to divorce. And for a divorce to move forward it is pretty much necessary for both sides to file affidavits of consent.  Complicating matters is the common fact that many people who file for divorce will for strategic reasons refuse to consent to the same divorce.  Absent the consent of both parties a divorce can move forward based upon either fault based grounds (adultery, cruelty, an ambiguous term called indignities and some other obscure grounds) or a legal separation of two of more years. Only after divorce grounds are established can a divorce be granted.  And in almost all situations the divorce will not come until claims for distribution of property and alimony are resolved by the parties or decided finally by a court. So there is no divorce after 90 days unless the parties are cooperating and there is no divorce even after a two year separation unless the economic issues are resolved. It makes the process slow and expensive but the lawmakers in the General Assembly have passed laws that favor delay in the hope that it may prompt reconciliation.

We have noted that a divorce can proceed even without consent where there has been a separation of two or more years. The question of when a couple is separated for purposes of the Divorce Code is one of the most difficult to answer.  In 2005 the legislature helped to clarify the separation by declaring that there was a rebuttable presumption that a couple was separated when a divorce action was filed. But the presumption is rebuttable where one party can show that there has not been a complete cessation of cohabitation.

An end to cohabitation does not require a separate household. The law as it has evolved in the courts that cohabitation ends when the parties show a clear intention to no longer be together.

Full post as published by Pennsylvania Family Law on November 13, 2008 (boomark / email).