Pennsylvania enabled no-fault divorce in 1980. Back then, if a couple was living separately and apart for three or more years, two things were different from situations with a shorter separation. First, such a divorce would not have the required 90 day waiting period in the middle of it and, second, the consent of the other party (the defendant, the party who did not file the divorce action), was not required. (By the way, that three-year period was soon reduced to two years and then, at the end of 2016, it was further reduced to just one year.)
Unfortunately, the media, print, TV, and radio, seized on the long separation divorces as being “automatic”. Those reporters were not only not lawyers, they did not even consult with lawyers before going off half-cocked spewing false information as if it were gospel.
There are NO automatic divorces in Pennsylvania nor anywhere in the USA. Why? Because of our Constitution. That renowned document gives each of us the right to our “day in court” if we are sued… and a divorce action IS very much a lawsuit. Our judges have heard everything, even the most outrageous and outlandish presentations of “facts” one could dream up. Here’s the best example of such a story and also it makes clear why no divorce can be automatic: A spouse files a divorce action alleging that the other spouse moved out ten years ago and never moved back in. As it has been more than the currently required one-year separation to proceed without consent, the spouse filing the action demands that the divorce be automatically granted. But, it turns out that that is just one side of the story, and not the truthful, accurate side. The other spouse never moved out and had not been legally notified that the divorce action had been filed. The Court, of course, noted that the record of the action did not have the required proof that the other spouse had been legally notified (served copies of the filed documents). That foolish attempt at an “automatic” divorce failed almost immediately.
In Pennsylvania, in a one year (or more) separation divorce action, after it is filed in court and the defendant spouse receives copies in accordance with our rules of procedures, the defendant must then be mailed two documents, an Important Notice and a Counteraffidavit (an affidavit against the divorce). The Important Notice, in essence, informs the defendant that the defendant has twenty days to contest the divorce and the Counteraffidavit provides the defendant with the means to file the contest. Now, it is true that if no contest is filed, the divorce will be granted without the defendant’s written consent. But, if the defendant decides, for any reason or for no reason, to file the Counteraffidavit (by simply mailing or taking it to the court, even without a lawyer and at no charge), the action is contested and court hearings must be scheduled to resolve the issues raised by the defendant in the Counteraffidavit.
What issues could be raised? The Counteraffidavit, in essence, has four statements on it and the defendant may check off any or all of them, whether or not any actually apply. One, the marriage is not irretrievably broken. Two, we have not been separated for one year yet. Three, the defendant wants money. Four, the defendant wants property (realty or personal property). Remember, checking any of them may have absolutely no meaning in the divorce action. That does not matter. The defendant has the right to file the Counteraffidavit regardless, thereby forcing the other spouse, the plaintiff, to incur very heavy court and legal fees just to schedule the hearings. Fair? Of course not, but our law permits it nonetheless.
So, as you can see, if the other party does not want the divorce – or simply wants to make it expensive or difficult for you – your divorce cannot be “automatic”, no matter what you have heard or read or even if you have been separated for decades. Before you go, a word about low-cost, uncontested, simple, no-fault divorces for those separated over one year. The court handling low-cost cases requires both parties to sign no matter how long you have been apart.