Here is an overview of the mutual consent divorce process in Pennsylvania.
Since each case is unique, this overview is not intended to be an exact guide.
It would be most prudent to consult with an attorney prior to attempting to do this yourself – especially if your divorce involves custody and/or marital estate issues.
Pennsylvania Divorce Process
In order to file for divorce in Pennsylvania, one of the spouses must be a resident of Pennsylvania for at least six months. With that requirement met, a Divorce Complaint may be filed with the in the Court of Common Pleas, Family Division, in the county where either spouse resides.
Many counties in Pennsylvania use different forms, and have different filing fees in order to obtain a divorce. Most of the forms can be obtained from the court’s website or the domestic relations office in person. The entire process of a mutual consent divorce will take anywhere from five months to two years. The timing is dependent on all of the paperwork being completed timely and whether the parties agree on the central issues involved in their divorce.
Step 1 – Divorce Complaint
The party initiating the divorce is referred to as the plaintiff, who will have to prepare and file a divorce complaint with the court. The plaintiff will have to file an original and two copies of the divorce complaint.
Step 2 – Service Of Process
The plaintiff must serve his/her spouse, referred to as the defendant, with a copy of the divorce complaint.
Pennsylvania requires that you serve the complaint within 30 days of filing it with the court. If you are unable to do this, you will have to refile your complaint and start again.
Pennsylvania allows you to serve the complaint via certified mail, through a process server, or the defendant can agree to accept service. Proof of service will also have to be filed with the court.
Step 3 – Negotiating Terms Of An Agreement
Either before or after the filing of the divorce complaint, you (and your attorney) should meet with your spouse (and their attorney) to discuss the details of your divorce agreement.
Many times the parties will easily be able to decide the division of their assets and liabilities, their custody arrangement, and also child and spousal support and/or alimony.
In some instances, it is not that easy. Where there is no immediate resolution, the parties will have to negotiate the terms and conditions of the division and distribution of their assets and liabilities, child and spousal support, and visitation. This step is unique to each couple.
At times, the negotiations can become arduous and very contentious. Even under these circumstances, in most instances it is in the parties’ best interest to reach an out-of-court agreement. You may need an experienced negotiator/advisor so your interests and rights are not compromised.
Step 4 – Statutory 90 Day Waiting Period
Pennsylvania has a statutory 90 day waiting period for divorce by mutual consent cases. This period begins after the Divorce Complaint has been properly served.
Once 90 days has elapsed, each party is required to complete an Affidavit of Consent and file it with the court. This certifies that the parties are in agreement with the divorce and consent to the divorce.
Step 5 – Praecipe To Transmit The Record
Next, the plaintiff will file a Praecipe to Transmit the record with the Court. This document enters the divorce into the court’s record and requests the Prothonotary (court clerk) to transmit all of the divorce paperwork to the Court, so the judge can enter a Divorce Decree.
If a divorcing couple (and attorneys) have successfully negotiated and resolved all issues related to their divorce, whether informally or through out-of-court processes like mediation or collaborative law, the couple’s decisions are finalized in detail in a written settlement agreement.
This agreement is also filed with the court at this time. A Waiver of Notice of Intention to Request Entry of the Divorce Decree will also be filed and then shown to a judge.
Step 6 – Court Approval And Divorce Decree
An informal hearing will usually follow, during which the judge will ask some basic factual questions and whether each party understands and chose to voluntarily sign the agreement.
As long as the judge is satisfied that the agreement was fairly negotiated, and the terms do not appear to blatantly favor one spouse over the other, the settlement agreement will almost always receive court approval.
Once the judge signs the Divorce Decree and approves the couple’s settlement agreement, the marriage is ended, the divorce is final and the divorce decree documents the resolution of the central issues in the divorce matter, including:
- division of the couple’s marital property, debts, and other financial matters
- child custody, living arrangements, and a visitation schedule
- child support and spousal support (called alimony after the divorce is final). The divorce decree will dictate who pays, who receives, how much, when, etc.
If either of the parties failed to assert their rights and claims to any marital assets, the division of liabilities, and/or support, prior to the judge signing the Divorce Decree, their claims will be waived.
The complete process takes approximately five to six months.
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