Spouses who have suffered abuse at the hands of their partners will have a new tool in seeking a Pennsylvania divorce this June thanks to Governor Tom Wolf signing House Bill 12 into law.
This new law should allow for a speedier divorce, based on “assumed consent,” in certain cases involving criminal convictions for personal injury crimes. The law becomes effective June 21, 2016. The purpose of this act is to protect victims of domestic violence in a divorce. Just like any change to an existing law, questions remain as to how this act will play out in the courts. The opportunities for abuse of this new section are outstanding. For purposes of this blog, we are going to refer to this as the “quick divorce.”
Wolf signed the bill into law on April 21, 2016, only 1 week after it was passed in the Senate and House. This act amends Title 23 (Domestic Relations) of the Pennsylvania Consolidated Statutes, in preliminary provisions relating to divorce, further providing for definitions; and, in dissolution of marital status, further providing for grounds for divorce, for counseling and for decree of court.
ADDITIONAL DEFINITION(S) ADDED TO THE ACT – SECTION 1
“CONVICTED.” – 1) Having been found guilty, 2) Having entered into a plea of guilty or Nolo Contendere; or 3 HAVING BEEN ACCEPTED INTO ACCELDERATED REHABILITATIVE DISPOSITION (ARD).
PERSONAL INJURY CRIME – An act that constitutes a misdemeanor or felony under any of the following OR CRIMINAL ATTEMPT, SOLICITATION OR CONSPIRACY TO COMMIT ANY OF THE FOLLOWING : 18 Pa.C.S. Ch. 25 (relating to criminal homicide). 18 Pa.C.S. Ch. 27 (relating to assault). 18 Pa.C.S. Ch. 29 (relating to kidnapping). 18 Pa.C.S. Ch. 30 (relating to human trafficking). 18 Pa.C.S. Ch. 31 (relating to sexual offenses). 18 Pa.C.S. § 3301 (relating to arson and related offenses). 18 Pa.C.S. Ch. 37 (relating to robbery). 18 Pa.C.S. Ch. 49 Subch. B (relating to victim and witness intimidation). 75 Pa.C.S. § 3732 (relating to homicide by vehicle). 75 Pa.C.S. § 3742 (relating to accidents involving death or personal injury).
So let me get this right… If you are convicted of injuring someone in a car accident by no fault of your own, your spouse can get a “quick divorce?” What if your spouse alleges that you robbed them or even if your spouse alleges that you kidnapped them after dragging them somewhere they didn’t want to go? Most importantly, in Pennsylvania, the current definition of assault includes an “ever so slight” touch. Does that mean if you bump into your spouse while in bed, that she could get a quick divorce?
We know that many people are inclined to take ARD on cases they are completely innocent of just to stop the bleeding of legal fees or the threat of spending time in jail for something they didn’t do…. this could turn into a blog entry on its own. Can we assume now that anyone who wants to get a divorce must file simple assault charges against their spouse first? Is this the new type of “divorcing” PFA that many of us know too well?
SECTION 2 – The addition of 3301(c)(2) – Presumed Mutual Consent
Currently, the court may grant a divorce where it is alleged that the marriage is irretrievably broken and 90 days have elapsed from the date of commencement of an action under a consent count of divorce. Generally, this is how a majority of people in Pennsylvania get divorced. You file the complaint, you serve the complaint on the other party, and then both of you wait 90 days and file the next set of papers to proceed to get a decree.
When this act goes into effect on June 21, there will be a new type of consent. Section C(2) reads that the consent of a party shall be presumed where that party has been convicted of committing a personal injury crime against the other party.
How is presumed consent under the same section as mutual consent? Divorce law in the Commonwealth of Pennsylvania provides for many approaches to divorce, as follows:
3301. Grounds for divorce.
(a) Fault.–The court may grant a divorce to the innocent and injured spouse whenever it is judged that the other spouse has:
(1) Committed willful and malicious desertion, and absence from the habitation of the injured and innocent spouse, without a reasonable cause, for the period of one or more years.
(2) Committed adultery.
(3) By cruel and barbarous treatment, endangered the life or health of the injured and innocent spouse.
(4) Knowingly entered into a bigamous marriage while a former marriage is still subsisting.
(5) Been sentenced to imprisonment for a term of two or more years upon conviction of having committed a crime.
(6) Offered such indignities to the innocent and injured spouse as to render that spouse’s condition intolerable and life burdensome.
(b) Institutionalization.–The court may grant a divorce from a spouse upon the ground that insanity or serious mental disorder has resulted in confinement in a mental institution for at least 18 months immediately before the commencement of an action under this part and where there is no reasonable prospect that the spouse will be discharged from inpatient care during the 18 months subsequent to the commencement of the action. A presumption that no prospect of discharge exists shall be established by a certificate of the superintendent of the institution to that effect and which includes a supporting statement of a treating physician.
(c) Mutual consent.–The court may grant a divorce where it is alleged that the marriage is irretrievably broken and 90 days have elapsed from the date of commencement of an action under this part and an affidavit has been filed by each of the parties evidencing that each of the parties consents to the divorce.
(d) Irretrievable breakdown.—
(1) The court may grant a divorce where a complaint has been filed alleging that the marriage is irretrievably broken and an affidavit has been filed alleging that the parties have lived separate and apart for a period of at least two years and that the marriage is irretrievably broken and the defendant either:
(i) Does not deny the allegations set forth in the affidavit.
(ii) Denies one or more of the allegations set forth in the affidavit but, after notice and hearing, the court determines that the parties have lived separate and apart for a period of at least two years and that the marriage is irretrievably broken.
Now, is it just me or would the new section make more sense under section A instead of Section C? Section C means that both parties want the divorce? I’m not so sure that this new amendment falls under mutual consent. How is forcing someone’s hand a way to get agreed divorce grounds?
Like many new laws, I suspect there will be a number of questions arising from this act (not the least of which is whether an ARD program in lieu of a conviction should be considered “consent”). Eventually our appeals courts will have to decide on these questions. In the meantime, it would be wise for anyone considering this type of divorce to discuss the particulars of their situation with their attorney. Even the waters of well-established laws are tricky enough for non-attorneys to traverse.
SECTION 3 – Counseling
The new act has added a section 3302(g) which indicates that a Court cannot require a party involved in a divorce action, to participate in counseling when that party is protected by a Protection From Abuse (PFA) Order or a party to the divorce has been convicted of or entered into an ARD Program for a personal injury crime.
This makes sense. Let’s face it. People who do not want to be married any longer should be able to get divorced. I can’t explain why anyone would ever intentionally injure their spouse, and in no way is this blog intended to explain why people would do that. However, Pennsylvania has always required that the parties have a right to request at least 3 sessions of marriage counseling before a divorce can be granted. This is optional and in practice is requested very rarely. Many of the parties who actually request to go to counseling, never wanted the divorce to begin with, but use it as a tool to get their marriage back on track or to get their spouse to understand the seriousness of a divorce.
When there is abuse, the marriage should not “get back on track”. There are so many trusts in a marriage and when there is physical or mental abuse, it’s just about impossible for the victim to ever trust the abuser again. That marriage is over whether the divorce is gone through or not. Since the courts are already following this rule anyway, it makes sense for this to section to have been approved.
I applaud Governor Wolf for his efforts in assisting victims of domestic violence, but we need to remember that these protections are shields and not swords. No different than a gun, knife, or a lighter. People who are found to abuse or misuse these sections of the law shall be reprimanded in the same manner someone who misuses any protection should be.
The following Blog has been written for entertainment purposes only. No information contained in this blog shall be considered legal advice and most importantly shall not be relied on by any individual. The views expressed here are the views of Charles Rick, Esquire only and not necessarily the views of Rick Linn, LLC or any other entity. If you are looking to talk about a divorce matter, please contact Charles Rick at 610-850-9036 ext. 1 to schedule a free consultation today.