For some time now, the General Assembly has been working towards amendment of the Divorce Code to reduce the waiting period for an unconsented no-fault divorce from two years to one. That legislation (House Bill 380) has passed committee and is awaiting final action.

Meanwhile another amendment to the Divorce Code quietly slipped through the legislature and was signed into law by the Governor on April 21, effective June 21, 2016. It is an odd piece of legislation; a kind of fault based no fault divorce ground.

Under House Bill 12 of 2015 (printer’s No. 2404) if one spouse has been convicted of a misdemeanor or felony involving

Criminal homicide

Assault

Kidnapping

Human Trafficking

Sexual Offense

Arson

Robbery

Victim/Witness Intimidation

Homicide by Vehicle

Accident Causing Death or Personal Injury

AND the Plaintiff sues for a mutual consent no-fault divorce, the consent of the convict is “presumed” if the Plaintiff is the victim of any of these crimes.

This is the first time this writer has seen the bill and I begin by confessing that I have not studied this subject very carefully. But if I am the victim of homicide or an accident causing death, one of the formalities I can dispense with is a posthumous divorce from my perp spouse.

I do offer that perhaps the intention is to include attempts at homicide or personal injury but the statute is not very clear on this subject.

I also note that for more than a century Pennsylvania has conferred divorces for “treatment” endangering the life or health of an innocent and injured spouse (Section 3301(a)(4) and conduct amounting to “indignities” to an innocent and injured spouse such as rendered the life of the victim intolerable and burdensome.(Sec. 3301(a)(6). Conviction of any of the above specified crimes in a case where the victim was a spouse would have res judicata effect in the subsequent divorce proceeding.  The only plausible defense would be that the victim was not innocent and injured.

The new statute requires a conviction to create a presumption. The statute does not make the presumption irrebuttable so, one must assume that a defendant spouse can still force the victim to trial so that the offender may rebut his presumed consent.  Even more vexing would be the task left to the trier of fact.  Husband attempts to kill or rape wife.  He is convicted but somehow draws a sentence of less than two years (another divorce ground under Sec. 3301 (a)(5).  Wife sues for divorce and tenders her own consent and the “presumed” consent of her spouse.  The offender spouse appears and testifies under oath that he does not consent.  What now?  Can the Court hold that he consented when he didn’t?  Wasn’t it just easier the old way, where the injured spouse tendered a certified copy of the conviction and rested her case?  Yes, the offender spouse could argue and present a case that his wife/victim was neither innocent nor injured, i.e., she deserved her beating or rape or robbing or burning.  But, I think that I like my chances of getting my client divorced better this way than relying upon a presumed consent that may be rebutted.  I know how to cross examine a person who claims the spouse got what she deserved. I’m not so sure how to cross a guy who says simply “I don’t care about the statute, I do not consent.”

So we have a change in the law, but I am not certain it can be termed an “advance”. One small consolation is an amendment to Section 3302.  This is the counseling provision and it now states no counseling can be ordered where one party has a Protection from Abuse Order or where one of the specified crimes listed above has resulted in a conviction.  Of course, one can still insist on the counseling while the criminal charges are pending unless a PFA found its way onto the docket.

Not a big change but effective with the New Year, the filing of a pre-trial statement identifying witnesses for a custody proceeding is, by itself, a certification that the attorney actually spoke to the witnesses listed. The explanatory comment does not tell us much about the origin of the rule, but some litigants like to profess that they are bringing the “world” to testify in a custody proceeding but then that list drops quickly as the day of trial approaches.  Note the certification is not one that you intend to call all of your listed witnesses; only that you at least spoke with them before putting their names in the pretrial statement.  The amendment is Rule 1915.4-4.  It was issued on October 28, 2015.

Not a big change but effective with the New Year, the filing of a pre-trial statement identifying witnesses for a custody proceeding is, by itself, a certification that the attorney actually spoke to the witnesses listed. The explanatory comment does not tell us much about the origin of the rule, but some litigants like to profess that they are bringing the “world” to testify in a custody proceeding but then that list drops quickly as the day of trial approaches.  Note the certification is not one that you intend to call all of your listed witnesses; only that you at least spoke with them before putting their names in the pretrial statement.  The amendment is Rule 1915.4-4.  It was issued on October 28, 2015.

Leslie Spoltore, a partner in our Wilmington, Delaware office, just posted a blog entry on an unusual alimony argument made on appeal to the Delaware Supreme Court.  The family court evaluated the ex-wife’s expenses when calculating alimony she would pay to her ex-husband and reduced the significant contributions she made to her church down to what it deemed a "reasonable" amount of $100.00.  The Court considered it a voluntary reduction in income. This is not unlike how Pennsylvania’s courts add back, for instance, voluntary contributions to 401(k) accounts when calculating child support and alimony pendete lite. 

On appeal, the ex-wife claimed that the Court’s assessment of alimony based on their consideration of her available income resulted in her inability to appropriately tithe her church and violated her First Amendment freedom of speech.

It is an interesting and creative argument, but did not carry her case and the Supreme Court ruled the family court could consider any factor it deems appropriate and nothing prohibited her from contributing as much as she would like to her church.

Read Leslie’s blog entry and link the decision here.