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How long will my divorce take, if my spouse won't agree?

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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.  Do not expect a court to 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 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 90-day 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 agree that two things are true: first, that the marriage is irretrievably broken and second, that you and your spouse have been separated for one or more years.  Many people in Pennsylvania mistakenly think that divorce is automatic after a separation has lasted for a full year, 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 first anniversary of your final separation you can sign an affidavit stating the date on which you separated, and that the marriage is irretrievably broken.  The form of this affidavit, just as with other Pennsylvania divorce forms, has been set through the Pennsylvania Rules of Civil Procedure.  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 one-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.

Until Pennsylvania divorce law changed effective December 5, 2016 Pennsylvania required a two-year separation.  One quirk of the new law is that the switch applies only to married couples who separated on or after that date; those who separated prior to that date still require a full two-year separation.

Can my spouse still fight a divorce in Pennsylvania even after one year?
Unfortunately, yes.  If your husband or wife claims that the marriage is not irretrievably broken or that you have not yet been separated for the full period required by PA law, the court cannot agree with the claims made in your affidavit until the court has heard both sides of the story at a formal hearing.  This is true even in extreme cases.  Many years ago, I handled a divorce for a woman who had been separated from her husband for well over two years, and her husband was serving a lengthy prison term for the terrible crimes he had committed against his own family.  After we served her husband with the divorce paperwork, 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 affair was really the fault of the state of Pennsylvania, having put 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, pointless barrier.

I don’t want to wait a year!  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.  Among the reasons: first, because marital misconduct 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” in what often turns into a he said/she said battle of finger-pointing; and third, because if there is a no-fault ground also available, the court will always prefer it 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 a year go by.

Claims for economic relief can extend the duration of the process still further, since some county courts (including Allegheny County, where our Pittsburgh family law office is located) will decline even to begin to decide who-gets-what until either both spouses sign the necessary consent forms, or until the full twelve months have passed since final separation.  In the meantime, be sure that you have done what is necessary to survive your separation.

Related articles:
How to find a good divorce lawyer in Pennsylvania
Riding the tiger: the cost of divorce
Fighting your case in court

If you need legal assistance with your divorce or family law matter in Southwestern Pennsylvania, call our office to set up a personal consultation with a family legal services attorney.  Please do not comment anonymously, and do not post anything that you consider confidential.  We try to be responsive to commentary and questions, but know that posting here will not create an attorney/client relationship and that we will not offer legal advice via the Internet.

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