Uncontested Divorce in Pennsylvania: Mutual Consent and the One-Year Separation Route

Most Pennsylvania divorces are no-fault and finish on paper, without a trial and usually without a hearing. Pennsylvania has no special "summary" divorce and no joint petition: one spouse files a complaint, and the case becomes uncontested when both spouses consent, or when the spouse who filed proves a year of separation that the other doesn't dispute.

Which route fits your case?

The mutual-consent divorce, step by step

Section 3301(c)(1) of the Divorce Code lets the court grant a divorce "where it is alleged that the marriage is irretrievably broken and 90 days have elapsed from the date of commencement of an action under this part and an affidavit has been filed by each of the parties evidencing that each of the parties consents to the divorce." You don't have to live apart first, and you don't have to prove anything about why the marriage ended.

Rule 1920.42(a) supplies the steps:

1. File the complaint. One spouse files a Notice to Defend and Complaint in Divorce with the prothonotary (or the county's family court filing office) in a county where either spouse lives, or one both spouses agree to. At least one spouse must have lived in Pennsylvania for six months.
2. Serve it. The other spouse must be formally served, within 30 days of filing if in Pennsylvania or 90 days if outside it (Rule 1930.4). The simplest way when spouses cooperate is an Acceptance of Service signed by the other spouse. Otherwise, a sheriff or an adult who isn't a party or a relative can hand-deliver it, or it can go by both certified (restricted delivery, return receipt) and first-class mail. File proof of service.
3. Wait at least 90 days after service. Then both spouses sign an Affidavit of Consent. Under Rule 1920.42(a)(1)(ii), the affidavits must be signed "90 days or more after service of the complaint" and filed "within 30 days of signing." An affidavit signed too early, or filed too late, doesn't count.
4. Deal with the money claims. Any claims for property division, alimony or counsel fees raised in the case must be settled by agreement, withdrawn, or decided by the court before the decree. Most spouses sign a property settlement agreement.
5. Waive or give notice. Each spouse can sign a Waiver of Notice of Intention to File the Praecipe to Transmit Record. If either won't, the filing spouse serves a Notice of Intention and must wait at least 20 days before the next step.
6. File the Praecipe to Transmit Record. This asks the prothonotary to send the file to the judge, with a proposed divorce decree.
7. The judge signs the decree. Mutual-consent cases are decided on the papers. No hearing officer may be appointed to decide consent or separation grounds (Rule 1920.51(a)(2)).

The waiver form makes the point plainly: "I understand that I will not be divorced until a divorce decree is entered by the Court". Signing papers, settling property or moving out doesn't end the marriage. The decree does.

Count from service, not filing

The statute counts 90 days from commencement of the action; the rule and the official Affidavit of Consent count from service. The form's second paragraph reads: "90 days have elapsed from the date of filing and service of the Complaint." Use the later date. Signing on day 89 after service means starting the affidavits over. See the timeline calculator.

Protect your economic claims before you consent

This is where people get hurt. Rule 1920.31(c) treats failing to claim alimony, spousal support, APL, counsel fees or costs before the final decree as "a waiver of those claims, unless the court expressly provides otherwise in its decree." Property claims not raised in the pleadings are not decided either. The Notice to Defend that comes with every complaint warns, in capital letters, that a spouse who doesn't file these claims before the divorce is granted "MAY LOSE THE RIGHT TO CLAIM ANY OF THEM." And the official Notice of Intention adds: "The filing of the form counter-affidavit alone does not protect your economic claims."

If you want property divided or alimony, raise the claim in the complaint or a counterclaim, or have a signed agreement, before you sign a waiver.

Presumed consent after a crime

If your spouse was convicted of a personal injury crime against you, "The consent of a party shall be presumed" (§ 3301(c)(2)). You sign an Affidavit of Consent on the same 90-days-after-service schedule, plus an Affidavit to Establish Presumption of Consent, and serve them with a blank counter-affidavit. If your spouse doesn't deny the conviction, the case proceeds on paper; if he or she does, the court decides. "Convicted" includes acceptance into the Accelerated Rehabilitative Disposition program (§ 3103).

When your spouse won't sign: the separation route

A spouse can't block a Pennsylvania divorce by refusing to consent. Under § 3301(d), the court may grant a divorce when an affidavit shows the spouses "have lived separate and apart for a period of at least one year and that the marriage is irretrievably broken," and the other spouse doesn't deny it, or denies it and loses at a hearing. For separations that began before December 5, 2016, the period is two years.

"Separate and apart" means "Cessation of cohabitation, whether living in the same residence or not" (§ 3103). You can be separated under one roof. And once a divorce complaint is filed and served, the law presumes you separated no later than the date of service.

The steps, under Rule 1920.42(c):

1. File and serve the complaint (you can file before the year is up).
2. After the separation period has run, sign and file the Affidavit under § 3301(d), and serve it with a blank Counter-Affidavit, the way the complaint was served.
3. If your spouse doesn't file a counter-affidavit denying it, the affidavit's statements are deemed admitted (Rule 1920.14(b)).
4. At least 20 days after serving the affidavit, serve a Notice of Intention; at least 20 days after that, file the Praecipe to Transmit Record. Signed waivers skip the notice. If no lawyer has appeared for your spouse and he or she can't be found after a diligent search, the court can excuse the notice.

If your spouse denies the separation, the court holds a hearing. If it finds "a reasonable prospect of reconciliation," it must continue the case for 90 to 120 days and require counseling (§ 3301(d)(2)).

No default divorce

Ignoring the papers doesn't win anyone a divorce. Rule 1920.41: "No judgment may be entered by default or on the pleadings." The defendant isn't required to answer the complaint at all; its statements are simply deemed denied unless admitted (Rule 1920.14(a)). What moves a case forward against a silent spouse is the separation affidavit, which is deemed admitted if not denied. If your spouse doesn't appear, you also file an affidavit about his or her military service (Rule 1920.46).

Fault grounds

Pennsylvania still has fault divorce: desertion for a year or more, adultery, cruel and barbarous treatment, bigamy, a prison sentence of two or more years, and indignities (§ 3301(a)). Fault requires proof at a hearing, and it doesn't change the property division, which is made "without regard to marital misconduct" (§ 3502(a)). Fault can matter to alimony. In practice, most people use mutual consent or separation instead.

Bifurcation: divorce now, money later

Sometimes spouses want the marriage ended before the property is divided. With both spouses' consent, the court may enter the decree and keep jurisdiction over the economic claims (§ 3323(c.1)). When the spouses can't resolve the money issues, the rule's usual path is an order approving grounds, followed by a hearing on the claims before a judge or hearing officer, and then the decree.

Where these sections live

• 23 Pa.C.S. Chapter 33 — Dissolution of marital status (§ 3301 grounds)
• Pa.R.C.P. 1920.42 — Obtaining a no-fault divorce decree
• Pa.R.C.P. 1920.14 — Answer; deemed admissions
• Pa.R.C.P. 1920.41 — No default judgment
• Pa.R.C.P. 1920.31 — Waiver of economic claims
• Pa.R.C.P. 1930.4 — Service of original process
• Pa.R.C.P. 1920.72 — Affidavit forms
• Pa.R.C.P. 1920.73 — Notice, waiver and praecipe forms