When filing a divorce criticism, it seems that a typical lawyer's commonplace pleading philosophy is to make as several claims as theoretically possible, counting on the court or opposing counsel to take the suitable action to strike the weakest claims; a method often known as "throw as a lot of mud against the wall and see what sticks!" The Pennsylvania Rules of Civil Procedure (Pa. R.C.P. 1020 and 1021) seem to support such a strategy by specifically allowing alternative pleading and pleading contradictory claims. In fact, the Supreme Court of Pennsylvania has explicitly ruled that "[t]hese rules reflect the general principle that plaintiffs ought to not be forced to elect a specific theory in pursuing a claim." Republic Intermodal Corporation and Sullivan Lines, Inc. v. Doris Leasing Company, Inc. and Union National Bank of Pittsburgh, 473 Pa. 614 (1976).
When filing a divorce grievance, it appears that almost all attorneys maintain the aforesaid strategy by simultaneously making claims for a divorce under Sections 3301(c), 3301(d), and typically 3301(a) of the Pennsylvania Divorce Code, as normal practice. For the good thing about those that are not familiar with the Divorce Code, Section 3301(c) permits a no-fault divorce after the filing of Affidavits of Consent by both parties and ninety (ninety) days have elapsed once the filing of a divorce action. Section 3301(d) permits for a no-fault divorce to be unilaterally secured by one spouse after 2 (two) years of separation. 3301(a) is a ancient and old school fault-based divorce claim.
Although the Rules of Civil Procedure appear to permit for various pleading, even in the context of divorce, there are a growing number of cases that appear to proscribe different pleading in divorce in sure circumstances. One question that has arisen is: will a plaintiff during a divorce action, filing beneath Section 3301(c) and 3301(d) and/or 3301(a) refuse to file an Affidavit of Consent to consent to his own divorce action? It would appear, under the higher than Rules and case law that a plaintiff in an exceedingly divorce action has the choice of continuing underneath whichever claim he wishes. However the courts have increasingly restricted this right beneath sure circumstances.
Pennsylvania courts, in an increasing variety of cases, have dominated that refusing to allow a plaintiff's divorce action to progress through the quickest route attainable unfairly and inappropriately prejudices the opposing party. Consequently, if a plaintiff files underneath Section 3301(c), the courts have increasingly taken the position that one cannot refuse to file an Affidavit of Consent under Section 3301(c). The bias to the opposing party is fairly obvious: first, the filing of a divorce action is typically in the course of the filing for (and granting of) alimony pendente lite. Alimony pendente lite is support for the opposing party which can solely be received during the pendency of a divorce action. Therefore, taking action to prolong one's own divorce action only serves to increase the time the opposing party should pay alimony pendente lite without recourse to prevent it. Second, it prolongs the time the parties are married, which will have any range of implications. The courts have taken the position that the refusal to consent to one's own divorce action is an abuse of the divorce method and one cannot receive the advantage of the divorce action without taking cheap steps to expeditiously conclude it.
Though the courts have ruled that one cannot refuse to file an Affidavit of Consent, will a court force a party to execute the affidavit? So so much, the courts have been reluctant to force the execution of an Affidavit of Consent. The cases deciding this issue up to now have established the penalty for refusing to consent to 1's own divorce to be the dismissal of the divorce action in toto, which, by definition, simultaneously dismisses the alimony pendente lite. It will not yet appear that sanctions against the party refusing to consent to his own divorce action are among the penalties to be assessed, however the cases do not proscribe such a result.
A subset of cases involving a celebration refusing to consent to his divorce is growing in the circumstance where the party is receiving spousal support rather than alimony pendente lite. The crucial distinction between spousal support and alimony pendente lite is that spousal support is not dependent upon the existence of a divorce action. Spousal support can be successfully requested and received by a spouse absent a divorce action, however is definitively concluded when the parties are divorced. Thus, dismissing the divorce action as a penalty for refusing to file an Affidavit of Consent, does not resolve the unfairness of getting an artificially prolonged spousal support order in place against the opposing party. In this instance, judicial economy arguments are raised within the context of the individual factual circumstances of every case. The precise issue is whether dismissing the divorce claim has any positive impact on the spousal support claim. If not, then dismissing the claim may not be a viable various to correct the unfairness against the opposing party. It's in this case that sanctions are presumably to be assessed to remedy the clearly unjust situation.
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Doris Hill has been writing articles online for nearly 2 years now. Not only does this author specialize in Dating for Boomers, you can also check out his latest website about:
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