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Mutual Consent Divorce

A brief overview of a Mutual Consent Divorce.

The fastest and cheapest way to get divorced is with a no fault divorce. There are several ways to get divorced. One can get divorced on no fault grounds, or fault grounds, or on both no fault and fault grounds.

If, you and you soon to be ex-spouse are in mutual agreement that you both want a divorce, as long as you are in agreement about everything, than a Mutual Consent divorce is the way to go.

It is no secret that attorneys get paid for their work. But, remember, in the realm of Family Law, the more one fights, the more it costs.

Courts do not like to grant divorces, when property issues are not settled—Equitable Distribution, a blog for another day.

For a Mutual Consent divorce, with no other issues, one must first file a complaint seeking a no fault divorce on the ground of Mutual Consent, and usually always adding the ground of irretrievable breakdown and serve it by sending the complaint certified mail and regular mail, or have your soon to be ex-spouse sign an affidavit of service accepting service then file the form, a certificate of service, with the prothonotary. No answer is needed, since all averments, in the Family Law arena are deemed denied.

Both parties must wait ninety (90) days after the complaint was filed and served then file their Affidavit of Consent for Mutual Consent divorces. Usually a Notice of intention to request entry of divorce decree, which must be served on the other party, or file a Waiver of Notice of intention to request entry of divorce decree, is filed along with the Affidavit of Consent.

If, both parties chooses to file the Waiver of Notice of intention to request entry of divorce decree, no service is necessary and the one who initially filed the complaint, would then transmit the record along with an Order for a Decree of divorce and once the Judge signs off, you are divorced.

Depending on what county you live, there may be additional steps to take under the local rules before a Mutual Consent divorce is granted.

Besides Mutual Consent there are several grounds or divorce. There are six grounds for a fault divorce, and one can also state more than one ground for divorce if necessary.

The fault divorce grounds are

“(a) Fault.–The court may grant a divorce to the innocent and injured spouse whenever it is judged that the other spouse has:

(1) Committed willful and malicious desertion, and absence from the habitation of the injured and innocent spouse, without a reasonable cause, for the period of one or more years.

(2) Committed adultery.

(3) By cruel and barbarous treatment, endangered the life or health of the injured and innocent spouse.

(4) Knowingly entered into a bigamous marriage while a former marriage is still subsisting.

(5) Been sentenced to imprisonment for a term of two or more years upon conviction of having committed a crime.

(6) Offered such indignities to the innocent and injured spouse as to render that spouse’s condition intolerable and life burdensome.” See 23 Pa.C.S.A. § 3301 (a) Fault.

The no fault grounds for divorces are:

“(b) Institutionalization.–The court may grant a divorce from a spouse upon the ground that insanity or serious mental disorder has resulted in confinement in a mental institution for at least 18 months immediately before the commencement of an action under this part and where there is no reasonable prospect that the spouse will be discharged from inpatient care during the 18 months subsequent to the commencement of the action. A presumption that no prospect of discharge exists shall be established by a certificate of the superintendent of the institution to that effect and which includes a supporting statement of a treating physician.

(c) Mutual consent.–The court may 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.

(d) Irretrievable breakdown.–

(1) The court may grant a divorce where a complaint has been filed alleging that the marriage is irretrievably broken and an affidavit has been filed alleging that the parties have lived separate and apart for a period of at least two years and that the marriage is irretrievably broken and the defendant either:

(i) Does not deny the allegations set forth in the affidavit.

(ii) Denies one or more of the allegations set forth in the affidavit but, after notice and hearing, the court determines that the parties have lived separate and apart for a period of at least two years and that the marriage is irretrievably broken.

(2) If a hearing has been held pursuant to paragraph (1)(ii) and the court determines that there is a reasonable prospect of reconciliation, then the court shall continue the matter for a period not less than 90 days nor more than 120 days unless the parties agree to a period in excess of 120 days. During this period, the court shall require counseling as provided in section 3302 (relating to counseling). If the parties have not reconciled at the expiration of the time period and one party states under oath that the marriage is irretrievably broken, the court shall determine whether the marriage is irretrievably broken. If the court determines that the marriage is irretrievably broken, the court shall grant the divorce. Otherwise, the court shall deny the divorce.” See 23 Pa.C.S.A. § 3301 (b)(c)(d).

Once grounds for divorce under a Mutual Consent, or Irretrievable breakdown is established, no hearing is required and the divorce will be granted. See 23 Pa.C.S.A. § 3301 (e)

As stated previously, the fastest cheapest divorce is a Mutual Consent divorce with no other issues or with all issues settled. The more you fight, the more it costs.

It is your choice to do it yourself, but it is always better to get an attorney…

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My Ex-Spouse Refuses to Pay Alimony, How Can I Enforce My Alimony Order?

By Matthew T. Hovey, Esquire

The Court awarded you alimony (or alimony pendente lite), but now your ex-spouse refuses to pay.  This is a serious problem because you rely in one way or another on the alimony to make ends meet.  Because alimony is discretionary, the court would not have awarded you alimony if this statement was not true.  What then can you do to enforce the alimony order?

23 Pa.C.S. § 3703, “Enforcement of Arrearages,” holds the answer.  If at any time you are owed money pursuant to an order for alimony, but you are not being paid the alimony, you need to petition the court for enforcement.  The court will then hold a hearing on the matter and it has broad powers to enforce the court order.

The court’s powers to enforce an order for alimony include:

  1. Enter a judgment against the obligated ex-spouse.
  2. Authorize the taking and seizure of goods and personal property of the ex-spouse, as well as the collection of rents or profits from real estate property.
  3. Attach up to 50% of the wages of the other party.
  4. Award interest for unpaid alimony installments.
  5. Require security to insure future payments.
  6. Issue a warrant for the arrest of the obligated ex-spouse and if, after a hearing, it is determined that the party willfully failed to comply with the court order alimony, jail the person for up to 6 months.
  7. Award reasonable attorneys fees and costs.

If you, a family member, or friend are not being paid alimony owed you by court order or a property settlement agreement, please contact our firm to discuss your options and for a free initial consultation.

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Can I Have My Marriage Annulled in Pennsylvania? Part 2: Voidable Marriages

By Matthew T. Hovey, Esquire

Clients faced with a divorce often want to know: can I have my marriage annulled?  Emotionally and psychologically, an annulment may be preferable.  Likewise, for religious reasons, they may prefer a legal annulment.  Unfortunately, in Pennsylvania, it is extremely difficult to qualify for an annulment.  In our state, there are two classes of annulment: void marriages and voidable marriages.  This article will focus on voidable marriages, while my previous article focused on void marriages.

23 Pa.C.S. § 3305(a) provides the conditions can make a marriage voidable.  A voidable marriage is one that is flawed, but whether the marriage is voided is discretionary.  In other words, if a party seeks annulment of one of these marriages then the marriage is voided, but otherwise, the marriage remains valid and enforceable.  Please note, however, that several of the conditions contain explicit time limits for filing for an annulment.

If one of the following conditions exist and an action for annulment is filed with the court, then the marriage is to be voided:

  1. Where either party to the marriage was under the age of 16 years old, UNLESS the marriage was authorized by the court.
  2. Where either party to the marriage was 16 or 17 years old and lacked the consent of his or her parent or guardian or the court, AND the marriage was not ratified upon reaching the age of 18 years old, AND an action for annulment is filed with the court within 60 days of the marriage ceremony.
  3. Where either party to the marriage was under the influence of alcohol or drugs AND an action for annulment is filed with the court within 60 days of the marriage ceremony.
  4. Where either party to the marriage was at the time of the marriage and remains to be naturally and incurably impotent, UNLESS the condition was known to the other party.
  5. Where one party was induced to enter into the marriage by fraud, duress, coercion or force attributable to the other party, UNLESS there has been voluntary cohabitation after the knowledge of the fraud or release from the effects of the fraud, duress coercion, or force.

If you, a family member, or friend are considering a divorce or annulment and would like to further discuss this topic, please call our office for a free initial consultation.

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Can I Have My Marriage Annulled in Pennsylvania? Part 1: Void Marriages

By Matthew T. Hovey, Esquire

Clients faced with a divorce often want to know: can I have my marriage annulled?  Emotionally and psychologically, an annulment may be preferable.  Likewise, for religious reasons, they may prefer a legal annulment.  Unfortunately, in Pennsylvania, it is extremely difficult to qualify for an annulment.  In our state, there are two classes of annulment: void marriages and voidable marriages.  This article will focus on void marriages, while my next article will focus on voidable marriages.

23 Pa.C.S. § 3304(a) provides the conditions can make a marriage void.  A void marriage is inherently flawed and invalid, as long as the condition exists.  If, however, the condition is removed and the parties cohabitate (cohabitation is different from living together; a couple may reside together but cease cohabitating), then the marriage may be validated based on the actions of the parties.

If one of the following conditions exist and an action for annulment is filed with the court, then the marriage is to be voided:

  1. Where either spouse at the time of the marriage already had an existing, valid marriage (unless that party obtained a decree of presumed death of the former spouse).
  2. Where the parties are related within the degrees of consanguinity prohibited by 23 Pa.C.S. § 1304.
  3. Where either party to the marriage was incapable of consenting due to insanity or serious mental disorder or otherwise lacked capacity to consent or did not not intend to consent to the marriage.
  4. Where either party to a purported common-law marriage was less than 18 years old.

If you, a family member, or friend are considering a divorce or annulment and would like to further discuss this topic, please call our office for a free initial consultation.

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In Pennsylvania, What Happens if We Divorce Without Dividing Our Property?

By Matthew T. Hovey, Esquire

Most couples can agree to get a divorce, but few can agree on how to divide their property.  As a result, equitable distribution in Pennsylvania can be very costly and require the assistance of an attorney and experts, such as real estate appraisers and forensic accountants.  Many couples, therefore, either choose to not or cannot afford to utilize equitable distribution.

What happens to the marital property then?  Who owns the property?  Who can possess the property?

The answer is enunciated in 23 Pa.C.S. § 3507(a), but understanding the statute requires an understanding of the legal terms it employs.  The two terms are “tenancy of entireties” and “tenancy in common.”  When a husband and wife purchase/receive property, they own it as “tenants by the entireties.”  Essentially, they own it jointly and there is an automatic transfer of the property from one spouse to other upon the death of one spouse.  Prior to the conclusion of equitable distribution, the court can step in and divide this property between the spouses “equitably,” based on the factors in 23 Pa.C.S. § 3502.  Once the divorce is concluded, however, the property converts to “tenancy in common,” and the ex-spouses own it as “tenants in common.”  Tenants in common are more of partners.  They own the property equally in separate shares.  One tenant in common could sell his or her share or will it any one they want.  The property will not automatically pass from one tenant in common to the other.

The conversion of the property can cause issues if either party wants to pursue their share of the property in court.  At any time, either party could file for the sale of the property, so that the proceeds can be divided equally between the parties.  This could be to the detriment of one party if in equitable distribution the could had the power to grant them 60% of the equity in the property, but now, because of the divorce and conversion, the court is capped at 50% of the equity.

This also creates the risk for unfair surprise and a lot of financial uncertainty.  For example, if both spouses own a house, divorce without pursuing equitable distribution, and one spouse voluntarily moves out of the home, at any time that ex-spouse could file an action with the court to force the sale of the other ex-spouses home.  The house will either be sold or the ex-spouse residing in the house will need to buy-out the other ex-spouse.  These are only some of the negative consequences of not pursuing equitable distribution.

The best alternative to a nasty fight over property is to reach an agreement on how to divide the property between of you.  If this occurs, it is strongly recommended that even you hire an attorney to prepare a property settlement agreement rather than simply divorcing without addressing your property issues.  Failure to do so could be disastrous or cause issues with lenders.  The property settlement agreement can properly avoid the surprise and financial uncertainty described above.

If you, a family member, or friend is considering pursuing a divorce without seeking equitable distribution of the property, please contact our office for a free initial consultation.

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In Pennsylvania, Can I Voluntarily Move Out Without “Abandoning” or “Deserting” My Spouse?

By Matthew T. Hovey, Esquire

Potential clients often call in and want to know: my marriage is over, but we still live together — can I move out or will that be abandonment or desertion?  This is a legitimate concern for many spouses faced with a divorce.  They fear being penalized for acknowledging that the marriage is over and wanting to move out to diffuse a tense situation at home.

The answer is no, it is not desertion or abandonment, as long as you move out in a responsible and respectful manner.  23 Pa.C.S. § 3301(a) enunciates the grounds for a “fault divorce.”  (a)(1) provides for a fault divorce when “the other spouse has committed willful and malicious desertion, and absence from the habitation of the injured and innocent spouse, without a reasonable cause, for the period of one or more years.”  Therefore, if you break that requirement down, in order to desert your spouse, you moving out of the house must be (1) on purpose (2) and malicious (3) and last at least one year (4) and there is no reasonable justification (e.g., abuse) for you moving out (5) and your spouse must be innocent of any wrongful conduct (e.g., affair, abuse, etc.).  Additionally, the Superior Court in Johnson v. Johnson, 171 A.2d 638, 641 (Pa. Super. 1961) made it clear that the relocation from the home must be continuous for the specified time period (at least one year) or the absence does not qualify as desertion or abandonment.  Thus, as long as you notify your spouse of your intentions, provide him or her with a contact number, and continue to fairly contribute to your marital financial obligations, you should not need to be concerned about desertion or abandonment with respect to your divorce proceedings.

If you intend to move out of the marital residence, however, it is strongly recommended that you consult with an attorney.  While your move may not qualify as desertion or abandonment, it may significantly impact other rights, such as spousal/child support and custodial rights, especially if you have children who you intend to relocate with you.  If you, a family member, or friend are considering moving out of the home shared with a spouse, please contact our office for a free initial consultation.

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In Pennsylvania, How Can I Force My Spouse to Move Out of the House?

By Matthew T. Hovey, Esquire

A common scenario after a husband and wife separate is neither party wants to move out of the marital residence/home.  For a variety reasons (e.g., financial, children, proximity to work, hope for reconciliation, spite, etc.), the parties remain in the same home, as roommates and attempt to maintain as much normalcy and civility as possible.  Often, unfortunately, the parties cannot make it work and one, or both, of the parties eventually wants the other other spouse out of the home.  The question is presented then: how can I force my spouse to move out of the house?

23 Pa.C.S. § 3502(c), “Family Home,” provides that “the court may award, during the pendency of the action or otherwise, to one or both of the parties the right to reside in the marital residence.”  In legal terms, we refer to this as filing “exclusive possession of the home.”  It is strongly recommended that you hire an attorney to prepare and prosecute the Petition for Exclusive Possession on your behalf.

In determining to whom to award exclusive possession of the home, the court will consider a variety of considerations, such as whether the party seeking relief can afford to maintain the home on his/her own, the impact of the award on any children, whether the other party can afford independent housing, any marital misconduct of the parties, and other considerations.  As a result, be especially prepared to demonstrate the financial abilities of both parties.  The court can also limit the award of possession of the home.  In other words, you could be granted the home during the pendency of the divorce, but in equitable distribution, the home is awarded to your spouse as part of the division of the marital estate.

If you, a family member, or a friend are currently residing with a spouse and are interested in exploring an action for exclusive possession of the home, please contact our office for a free initial consultation.

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