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231 Pa. Code Rule 1920.42. Obtaining Divorce Decrees under Section 3301(c) or Section 3301(d) of the Divorce Code. Affidavits and Counter-Affidavits. Requirements of the Affidavit of Consent. Ancillary Claims. Orders Approving Grounds for Divorce. Notice of Intention to File the Praecipe to Transmit Record. Praecipe to Transmit Record.

Rule 1920.42. Obtaining Divorce Decrees under Section 3301(c) or Section 3301(d) of the Divorce Code. Affidavits and Counter-Affidavits. Requirements of the Affidavit of Consent. Ancillary Claims. Orders Approving Grounds for Divorce. Notice of Intention to File the Praecipe to Transmit Record. Praecipe to Transmit Record.

 (a)  Obtaining a divorce decree under Section 3301(c)(1) of the Divorce Code.

   (1)  If a party has filed a complaint requesting a divorce on the ground of irretrievable breakdown, the court shall enter a decree in divorce after:

     (i)   proof of service of the complaint has been filed;

     (ii)   the parties have signed Affidavits of Consent 90 days or more after service of the complaint and have filed the affidavits within 30 days of signing, which may only be withdrawn by an order of court;

     (iii)   the ancillary claims under Pa.R.C.P. Nos. 1920.31 and 1920.33 have been withdrawn by the party raising the claims, have been resolved by agreement of the parties or order of court, have not been raised in the pleadings, or in the case of a bifurcated divorce, the court has retained jurisdiction of the ancillary claims;

     (iv)   the parties have signed and filed Waivers of Notice of Intention to File the Praecipe to Transmit Record or, alternatively, the party requesting the divorce decree has served on the other party a Notice of Intention to File the Praecipe to Transmit Record, which included a blank Counter-Affidavit under Section 3301(c)(1) and a copy of the proposed Praecipe to Transmit Record that indicated the date and manner of service of the Notice of Intention to File the Praecipe to Transmit Record; and

     (v)   the party requesting the divorce decree has completed and filed a Praecipe to Transmit Record. If the parties have not waived the Notice of Intention to File the Praecipe to Transmit Record, the moving party shall wait a minimum of 20 days after service of the Notice of Intention to File the Praecipe to Transmit Record before filing the Praecipe to Transmit Record.

   Official Note

   See Pa.R.C.P. No. 1920.72(b) for the Affidavit of Consent.

   See Pa.R.C.P. No. 1920.73(a) for the Notice of Intention to File the Praecipe to Transmit Record.

   See Pa.R.C.P. No. 1920.72(e)(1) for the Counter-Affidavit under Section 3301(c)(1) of the Divorce Code.

   See Pa.R.C.P. No. 1920.73(b) for the Waiver of Notice of Intention to File the Praecipe to Transmit Record.

   See Pa.R.C.P. No. 1920.73(c) for the Praecipe to Transmit Record.

   (2)  To the extent that grounds for divorce have been established under Section 3301(c)(1) of the Divorce Code as outlined in subdivision (a)(1)(ii) and the parties have been unable to resolve the ancillary claims, the court shall enter an order approving grounds for divorce after:

     (i)   the parties have signed and filed Waivers of Notice of Intention to File the Praecipe to Transmit Record or, alternatively, the party requesting the order approving grounds has served on the other party a Notice of Intention to File the Praecipe to Transmit Record, which included a blank Counter-Affidavit under Section 3301(c)(1) and a copy of the proposed Praecipe to Transmit Record that indicated the date and manner of service of the Notice of Intention to File the Praecipe to Transmit Record; and

     (ii)   the party requesting the order approving grounds has completed and filed a Praecipe to Transmit Record requesting the court enter an order approving grounds for divorce. If the parties have not waived the Notice of Intention to File the Praecipe to Transmit Record, the moving party shall wait a minimum of 20 days after service of the Notice of Intention to File the Praecipe to Transmit Record before filing the Praecipe to Transmit Record. If the court enters an order approving grounds for divorce, entry of the divorce decree shall be deferred until the ancillary claims have been resolved.

   Official Note

   See Pa.R.C.P. No. 1920.73(a) for the Notice of Intention to File the Praecipe to Transmit Record.

   See Pa.R.C.P. No. 1920.73(b) for the Waiver of Notice of Intention to File the Praecipe to Transmit Record.

   See Pa.R.C.P. No. 1920.73(c) for the Praecipe to Transmit Record.

   (3)  After the court enters an order approving grounds for divorce, a party may request, consistent with the judicial district’s local rules and procedures, that the court either hears the ancillary claims or appoints a master to hear the ancillary claims as outlined in Pa.R.C.P. No. 1920.51.

   Official Note

   See Pa.R.C.P. No. 1920.74 for the Motion for Appointment of Master.

   (4)  If the parties resolve the ancillary claims by agreement after the court approves the grounds for the divorce but before the court enters an order disposing of the ancillary claims, the parties shall file a Praecipe to Transmit Record requesting the court enter the appropriate divorce decree. To the extent the agreement does not address all of the parties’ claims raised in the pleadings, the party raising the outstanding claims shall withdraw the claims before the court enters a divorce decree.

 (b)  Obtaining a divorce decree under Section 3301(c)(2) of the Divorce Code.

   (1)  If a party has filed a complaint requesting a divorce on the ground of irretrievable breakdown and a party has been convicted of a personal injury crime against his or her spouse, the court shall enter a decree in divorce after:

     (i)   proof of service of the complaint has been filed;

     (ii)   the party who is the victim of the personal injury crime:

       (A)   has signed and filed an Affidavit of Consent consistent with subdivision (a)(1)(ii); and

       (B)   has signed and filed an Affidavit to Establish Presumption of Consent under Section 3301(c)(2) of the Divorce Code alleging his or her status as a victim of a personal injury crime and that his or her spouse has been convicted of that crime;

     (iii)   the filed affidavits and a blank Counter-Affidavit under Section 3301(c)(2) of the Divorce Code have been served on the other party consistent with Pa.R.C.P. No. 1930.4, and the other party has admitted or failed to deny the averments in the Affidavit to Establish Presumption of Consent under Section 3301(c)(2) of the Divorce Code;

       (A)   If a party files a Counter-Affidavit under Section 3301(c)(2) of the Divorce Code denying an averment in the Affidavit to Establish Presumption of Consent under Section 3301(c)(2) of the Divorce Code, either party may present a motion requesting the court resolve the issue.

       (B)   After presentation of the motion in subdivision (A), the court may hear the testimony or, consistent with Pa.R.C.P. No. 1920.51(a)(1)(ii)(D), appoint a master to hear the testimony and to issue a report and recommendation.

   Official Note

   This subdivision requires service of the counter-affidavit on the non-moving party consistent with original process since the averments in the moving party’s Affidavit to Establish Presumption of Consent under Section 3301(c)(2) of the Divorce Code are deemed admitted unless denied. See Pa.R.C.P. No. 1930.4 for service of original process and Pa.R.C.P. No. 1920.14(b) regarding failure to deny averments in the affidavit.

     (iv)   the ancillary claims under Pa.R.C.P. Nos. 1920.31 and 1920.33 have been withdrawn by the party raising the claims, have been resolved by agreement of the parties or order of court, have not been raised in the pleadings, or in the case of a bifurcated divorce, the court has retained jurisdiction of the ancillary claims;

     (v)   a minimum of 20 days from the date of service of the affidavits and blank Counter-Affidavit under Section 3301(c)(2) as set forth in (b)(1)(iii), the party requesting the divorce decree has served on the other party a Notice of Intention to File the Praecipe to Transmit Record, which included a copy of the proposed Praecipe to Transmit Record that indicated the date and manner of service of the Notice of Intention to File the Praecipe to Transmit Record, except that service of such Notice of Intention is not required if:

       (A)   the parties have signed and filed Waivers of Notice of Intention to File the Praecipe to Transmit Record; or

       (B)   the court finds that an attorney has not entered an appearance on the defendant’s behalf and that the defendant cannot be located after a diligent search; and

     (vi)   the party requesting the divorce decree has completed and filed a Praecipe to Transmit Record. If the parties have not waived the Notice of Intention to File the Praecipe to Transmit Record, the moving party shall wait a minimum of 20 days after service of the Notice of Intention to File the Praecipe to Transmit Record before filing the Praecipe to Transmit Record.

   Official Note

   See Pa.R.C.P. No. 1920.72(b) for the Affidavit of Consent.

   See Pa.R.C.P. No. 1920.72(c) for the Affidavit to Establish Presumption of Consent under Section 3301(c)(2) of the Divorce Code.

   See Pa.R.C.P. No. 1920.72(e)(2) for the Counter-Affidavit under Section 3301(c)(2) of the Divorce Code.

   See Pa.R.C.P. No. 1920.73(a) for the Notice of Intention to File the Praecipe to Transmit Record.

   See Pa.R.C.P. No. 1920.73(b) for the Waiver of Notice of Intention to File the Praecipe to Transmit Record.

   See Pa.R.C.P. No. 1920.73(c) for the Praecipe to Transmit Record.

   (2)  To the extent that grounds for divorce have been established under Section 3301(c)(2) of the Divorce Code as outlined in subdivision (b)(1)(ii)- (iii) and the parties have been unable to resolve the ancillary claims, the court shall enter an order approving grounds for divorce after:

     (i)   a minimum of 20 days from the date of service of the affidavits and blank Counter-Affidavit under Section 3301(c)(2) of the Divorce Code as set forth in (b)(1)(iii), the party requesting the order approving grounds has served on the other party a Notice of Intention to File the Praecipe to Transmit Record, which included a copy of the proposed Praecipe to Transmit Record that indicated the date and manner of service of the Notice of Intention to File the Praecipe to Transmit Record, except that service of such Notice of Intention is not required if:

       (A)   the parties have signed and filed Waivers of Notice of Intention to File the Praecipe to Transmit Record; or

       (B)   the court finds that an attorney has not entered an appearance on the defendant’s behalf and that the defendant cannot be located after a diligent search; and

     (ii)   the party requesting the order approving grounds has completed and filed a Praecipe to Transmit Record requesting the court enter an order approving grounds for divorce. If the parties have not waived the Notice of Intention to File the Praecipe to Transmit Record, the moving party shall wait a minimum of 20 days after service of the Notice of Intention to File the Praecipe to Transmit Record before filing the Praecipe to Transmit Record. If the court enters an order approving grounds for divorce, entry of the divorce decree shall be deferred until the ancillary claims have been resolved.

   Official Note

   See Pa.R.C.P. No. 1920.73(a) for the Notice of Intention to File the Praecipe to Transmit Record.

   See Pa.R.C.P. No. 1920.73(b) for the Waiver of Notice of Intention to File the Praecipe to Transmit Record.

   See Pa.R.C.P. No. 1920.73(c) for the Praecipe to Transmit Record.

   (3)  After the court enters an order approving grounds for divorce, a party may request, consistent with the judicial district’s local rules and procedures, that the court either hears the ancillary claims or appoints a master to hear the ancillary claims as outlined in Pa.R.C.P. No. 1920.51.

   Official Note

   See Pa.R.C.P. No. 1920.74 for the Motion for Appointment of Master.

   (4)  If the parties resolve the ancillary claims by agreement after the court approves the grounds for the divorce but before the court enters an order disposing of the ancillary claims, the parties shall file a Praecipe to Transmit Record requesting the court enter the appropriate divorce decree. To the extent the agreement does not address all of the parties’ claims raised in the pleadings, the party raising the outstanding claims shall withdraw the claims before the court enters a divorce decree.

 (c)  Obtaining a divorce decree under Section 3301(d) of the Divorce Code.

   (1)  If a party has filed a complaint requesting a divorce on the ground of irretrievable breakdown and the requisite separation period has elapsed, the court shall enter a decree in divorce after:

     (i)   proof of service of the complaint has been filed;

     (ii)   a party has signed and filed an Affidavit under Section 3301(d) of the Divorce Code averring that the marriage is irretrievably broken and that the parties have been separate and apart for the required separation period;

     (iii)   the filed affidavit and a blank Counter-Affidavit under Section 3301(d) of the Divorce Code have been served on the other party consistent with Pa.R.C.P. No. 1930.4, and the other party has admitted or failed to deny the averments in the Affidavit under Section 3301(d) of the Divorce Code;

       (A)   If a party files a Counter-Affidavit under Section 3301(d) of the Divorce Code denying an averment in the Affidavit under Section 3301(d) of the Divorce Code, including the date of separation, either party may present a motion requesting the court resolve the issue.

       (B)   After presentation of the motion in subdivision (A), the court may hear the testimony or, consistent with Pa.R.C.P. No. 1920.51(a)(1)(ii)(D), appoint a master to hear the testimony and to issue a report and recommendation.

   Official Note

   This subdivision requires service of the counter-affidavit on the non-moving party consistent with original process since the averments in the moving party’s Affidavit under §  3301(d) of the Divorce Code are deemed admitted unless denied. See Pa.R.C.P. No. 1930.4 for service of original process and Pa.R.C.P. No. 1920.14(b) regarding failure to deny averments in the affidavit.

     (iv)   the ancillary claims under Pa.R.C.P. Nos. 1920.31 and 1920.33 have been withdrawn by the party raising the claims, have been resolved by agreement of the parties or order of court, have not been raised in the pleadings, or in the case of a bifurcated divorce, the court has retained jurisdiction of the ancillary claims;

     (v)   a minimum of 20 days from the date of service of the affidavit and blank Counter-Affidavit under Section 3301(d) of the Divorce Code as set forth in (c)(1)(iii), the party requesting the divorce decree has served on the other party a Notice of Intention to File the Praecipe to Transmit Record, which included a copy of the proposed Praecipe to Transmit Record that indicated the date and manner of service of the Notice of Intention to File the Praecipe to Transmit Record, except that service of such Notice of Intention is not required if:

       (A)   the parties have signed and filed Waivers of Notice of Intention to File the Praecipe to Transmit Record; or

       (B)   the court finds that an attorney has not entered an appearance on the defendant’s behalf and that the defendant cannot be located after a diligent search; and

     (vi)   the party requesting the divorce decree has completed and filed a Praecipe to Transmit Record. If the parties have not waived the Notice of Intention to File the Praecipe to Transmit Record, the moving party shall wait a minimum of 20 days after service of the Notice of Intention to File the Praecipe to Transmit Record before filing the Praecipe to Transmit Record.

   Official Note

   See Pa.R.C.P. No. 1920.72(d) for the Affidavit under Section 3301(d) of the Divorce Code.

   See Pa.R.C.P. No. 1920.72(e)(3) for the Counter-Affidavit under Section 3301(d) of the Divorce Code.

   See Pa.R.C.P. No. 1920.73(a) for the Notice of Intention to File the Praecipe to Transmit Record.

   See Pa.R.C.P. No. 1920.73(b) for the Waiver of Notice of Intention to File the Praecipe to Transmit Record.

   See Pa.R.C.P. No. 1920.73(c) for the Praecipe to Transmit Record.

   (2)  To the extent that grounds for divorce have been established under Section 3301(d) of the Divorce Code as outlined in subdivision (c)(1)(ii)-(iii) and the parties have been unable to resolve the ancillary claims, the court shall enter an order approving grounds for divorce after:

     (i)   a minimum of 20 days from the date of service of the affidavit and blank Counter-Affidavit under Section 3301(d) of the Divorce Code as set forth in (c)(1)(iii), the party requesting the order approving grounds has served on the other party a Notice of Intention to File the Praecipe to Transmit Record, which included a copy of the proposed Praecipe to Transmit Record that indicated the date and manner of service of the Notice of Intention to File the Praecipe to Transmit Record, except that service of such Notice of Intention is not required if:

       (A)   the parties have signed and filed Waivers of Notice of Intention to File the Praecipe to Transmit Record; or

       (B)   the court finds that an attorney has not entered an appearance on the defendant’s behalf and that the defendant cannot be located after a diligent search; and

     (ii)   the party requesting the order approving grounds has completed and filed a Praecipe to Transmit Record requesting the court enter an order approving grounds for divorce. If the parties have not waived the Notice of Intention to File the Praecipe to Transmit Record, the moving party shall wait a minimum of 20 days after service of the Notice of Intention to File the Praecipe to Transmit Record before filing the Praecipe to Transmit Record. If the court enters an order approving grounds for divorce, entry of the divorce decree shall be deferred until the ancillary claims have been resolved.

   Official Note

   See Pa.R.C.P. No. 1920.73(a) for the Notice of Intention to File the Praecipe to Transmit Record.

   See Pa.R.C.P. No. 1920.73(b) for the Waiver of Notice of Intention to File the Praecipe to Transmit Record.

   See Pa.R.C.P. No. 1920.73(c) for the Praecipe to Transmit Record.

   (3)  After the court enters an order approving grounds for divorce, a party may request, consistent with the judicial district’s local rules and procedures, that the court either hears the ancillary claims or appoints a master to hear the ancillary claims as outlined in Pa.R.C.P. No. 1920.51.

   Official Note

   See Pa.R.C.P. No. 1920.74 for the Motion for Appointment of Master.

   (4)  If the parties resolve the ancillary claims by agreement after the court approves the grounds for the divorce but before the court enters an order disposing of the ancillary claims, the parties shall file a Praecipe to Transmit Record requesting the court enter the appropriate divorce decree. To the extent the agreement does not address all of the parties’ claims raised in the pleadings, the party raising the outstanding claims shall withdraw the claims before the court enters a divorce decree.

Explanatory Comment—2019

   On April 21, 2016, Act 24 of 2016 (Act of Apr. 21, 2016, P.L. 166, No. 24) amended the Divorce Code by adding 23 Pa.C.S. §  3301(c)(2). Section 3301(c)(2) creates a presumption of consent to a divorce if a party is the victim of a personal injury crime committed by his or her spouse, as outlined in 23 Pa.C.S. §  3103. The Act amended other correlative statutes in the Divorce Code, as well. To effectively incorporate procedures for the newly enacted Section 3301(c)(2) into the Rules of Civil Procedure, Pa.R.C.P. No. 1920.42 was rescinded and replaced.

   In implementing Section 3301(c)(2), the rule utilizes an affidavit/counter-affidavit procedure similar to a Section 3301(d) divorce, which served as a template for the new procedure. The process for establishing the presumption of consent in Section 3301(c)(2) requires the party to aver in an affidavit that he or she had been the victim of a personal injury crime and that his or her spouse had been convicted of that personal injury crime. In response, the allegedly convicted spouse may oppose the establishment of the presumption by completing and filing a counter-affidavit. If the allegedly convicted spouse opposes the establishment of the presumption, the court may either schedule a hearing on the establishment of the presumption or appoint a master to do so. As part of the revised divorce procedures, amended Pa.R.C.P. No. 1920.51(a)(1) permits the appointment of a master for a determination of the presumption under Section 3301(c)(2). To effectuate the new procedures for Section 3301(c)(2) divorces, several additional forms, including an Affidavit to Establish Presumption of Consent and a Counter-Affidavit under Section 3301(c)(2), have been added to the rules. See Pa.R.C.P. No. 1920.72(c) and (e)(2).

   In addition to the changes to the rule related to 23 Pa.C.S. §  3301(c)(2), the rule has been further revised to provide a uniform practice across the Commonwealth for establishing a definitive point when the parties can move the court for resolution of any ancillary claims. As the court cannot resolve the ancillary claims until grounds for divorce have been established, Pa.R.C.P. No. 1920.42 includes procedures for obtaining approval of grounds for divorce in cases in which the parties have unresolved ancillary claims. This process requires that the parties obtain a court order approving grounds for divorce before seeking the appointment of a divorce master or requesting the court hear the ancillary claims raised in the pleadings. Forms have been correlatively amended or retitled to reflect this new procedure. The Waiver of Notice of Intention has been moved from Pa.R.C.P. No. 1920.72 to Pa.R.C.P. No. 1920.73.

   As a result of these changes, Pa.R.C.P. No. 1920.42 specifically outlines the process for obtaining a decree for Section 3301(c)(1), Section 3301(c)(2), and Section 3301(d) divorces. Although the rule’s length has expanded extensively, the detailed procedure alleviates confusion on when and how to obtain a divorce decree and further assists unrepresented parties to maneuver through a complicated procedure.

Source

   The provisions of this Rule 1920.42 adopted June 27, 1980, effective July 1, 1980, 10 Pa.B. 2967; amended January 28, 1983, effective July 1, 1983, 13 Pa.B. 677; amended November 7, 1988, effective January 1, 1989, 18 Pa.B. 5324; amended May 17, 1991, effective July 1, 1991, 21 Pa.B. 2615; amended September 11, 1995, effective January 1, 1996, 25 Pa.B. 4099; amended April 10, 1997, effective July 1, 1997, 27 Pa.B. 2042; amended March 2, 2000, effective immediately, 30 Pa.B. 1646; amended May 6, 2015, effective July 1, 2015, 45 Pa.B. 2457; amended June 3, 2019, effective October 1, 2019, 49 Pa.B. 3059. Immediately preceding text appears at serial pages (394395) to (394396).



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