The anxiety, acrimony and expense of a no-fault divorce may diminish after a new state law takes effect in December.
Act 102, signed by Gov. Wolf earlier this month, rolls back the waiting period for a divorce from two years to one year. While this change may seem like tinkering around the edges of a labyrinthine Divorce Code, that one-word change – and one-year difference -- can spell a world of positive change for children of divorcing parents.
Protecting the best interests of young children is the reason this enactment was a long-standing priority of the Family Law Section of the Pennsylvania Bar Association.
I was honored to lead that section from July 2014 to July 2015, and to work with Dan Clifford, now a judge on the Court of Common Pleas in Montgomery County, on this shared objective, along with legislators and fellow lawyers.
While interest in this new law runs high among couples in the process of divorce, it is important to note that the law’s provisions affect only those who begin to live separate and apart after the law’s effective date, which is December 4th, 2016.
Far from advocating a “quickie” divorce or “fast-forwarding” the breakdown of a marriage, the new law is designed to help families move on with their lives and put major decisions in place after a marriage is already “irretrievably broken.” Resolving larger economic and custody issues can then proceed more quickly, affording all parties a greater opportunity to adjust and move forward in their new reality.
To fully appreciate the genesis and ramifications of the new law, an understanding of current law is essential.
Pennsylvania’s statute delineates three ways to prove that a spouse is entitled to a legal divorce. The first occurs when both parties consent and sign. Mutual agreement allows divorces to be completed in as little as 90 days after the filing and service of a complaint. The second is if one party will not consent and sign for a divorce, the court will not grant it until the parties wait two years from the date of separation. The third way is to prove grounds for fault.
The new law deals with only the second eventuality.
The goal of the two–year waiting period was to promote reconciliation, a worthy and well-intentioned objective. However, in its implementation, family law attorneys witnessed a host of unintended consequences.
During this mandated waiting period, uncertainty and insecurity reigned, and both parties were suspended in an emotional, economic, co-parenting and marital limbo. Separated but not divorced, litigation often escalated to more heated and high-priced heights. Stress increased along with the legal fees, and money intended for children went to attorneys instead. Lawyers and judges found that, after two years, parties do not change their mind and miraculously reconcile.
Frequently, young children cannot move on with their lives until the “money” issues are settled and unresolved questions are answered, including “Should we sell the house?” and “Should we send the kids to a new school?”
It has become increasingly apparent to lawyers and Judges handling family law matters that this uncertainty, and this long wait, is harmful to children, financially, academically and emotionally. It is an axiomatic that the biggest indicator of children’s success after a divorce is the level of conflict in the dissolution to which the children are exposed.
In my 28 years of practicing divorce law, I have observed first-hand that the fighting often magically evaporates – not during the two-year period -- but once a divorce is finalized. This new law helps to accelerate families progress to this point of peace and acceptance.
It still gives the married parties a one year cooling off period -- a time to reconsider and perhaps reconcile. And it does not automatically hit the “delete” button on the marriage. A second hurdle must be scaled, dealing with economic issues, such as alimony and the distribution of property. If these economic issues cannot be resolved by agreement, the court will not even start to address those issues until grounds for divorce have been established. The change allows divorcing parties to “get in line” more quickly to deal with the economic component of their case.
Some legislators have wondered aloud why family lawyers are advocating a change that will allow consumers to pay less for a divorce.
In a sentence, it is the right thing to do. When the law fails to accomplish its intended goals in an already heart-wrenching process, it must be corrected. Indeed, New York and New Jersey only have a six-month waiting period; Indiana, a 60-day; and Ohio, none.
Like Pennsylvania, these states have seen that a family enduring the anguish and uncertainty of divorce is helped by closure.
The sooner a family can move through the divorce process once it is inevitable that it will occur, the better.