Pennsylvania Uncontested Divorce

This information is an overview of the uncontested Pennsylvania divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those "do it yourself divorce" filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in Pennsylvania.

In order to file for divorce, either spouse must be a resident of Pennsylvania for at least six months before filing for divorce.

Pennsylvania offers divorce on two No-Fault grounds: mutual consent, which happens when the spouses agree that the marriage is irretrievably broken and 90 days have elapsed from the commencement of the action, and two-year separation, which happens when one of the parties refuses to consent to the divorce and the parties have lived separate and apart for two years. Fault grounds include adultery, endangerment, desertion, imprisonment for at least two years and indignities.

The cost of filing varies by county. Many of the forms used in Philadelphia County are different from the forms used in other Pennsylvania counties. Some counties have local rules and forms used only in their jurisdiction. In Pennsylvania, in all actions, the petitioner is called the Plaintiff and the respondent is called the Defendant. Divorce actions are filed in the Court of Common Pleas, which is a county court.

In general, the most simple divorce moves along this steps:

1. Filing necessary papers in the office of the prothonotary in the county court.
2. Notifying the spouse by sending him or her a copy of the filed court papers via certified mail or process server.
3. Negotiating the marital property settlement.
4. Both spouses signing an agreement called an Affidavit of Consent.
5. Filing a form called a Praecipe to Transmit Record with the prothonotary.

Step 1 is the filing of the Complaint in Divorce, which identifies the parties and asks the court to grant a divorce.

Step 2 is the Service of Process, which includes the Certificate of Service, documenting that the Defendant took possession of the Complaint and related court papers.

Step 3 is unique to each couple. It is the negotiation by which each couple arrive at a Marital Settlement Agreement -- the terms and conditions of the division and distribution of assets and liabilities, child and spousal support, visitation.

Step 4 requires the completion of an Affidavit of Consent, which must be completed by each spouse and certifies agreement with the divorce.

Step 5 is the filing of the Praecipe to Transmit Record, which enters the divorce into the record. Step 5 also includes the filing with the prothonotary of the Affidavit of Consent, the Marital Property Settlement Agreement, a Record of Divorce or Annulment and Certificate (Proof of Service).

Some couples may have begun or even completed Step 3 before even filing the Complaint. These are the couples who most likely are negotiating what is called a Mutual Consent Divorce, under § 3301(c) -- an uncontested, No-Fault action that ends a marriage in 90 days.

To be eligible for the Mutual Consent Divorce, a couple must

> Meet the residency requirement (at least one spouse must be a resident for at least six months prior to filing).
> Have no minor or dependent children, or be in accord about custody and child support, so that there is no need for a hearing.
> Be in accord about the terms and conditions of the Marital Settlement Agreement.
> Each sign an Affidavit of Consent.

While the procedure for a Mutual Consent Divorce is simple, the action requires a number of forms. Not all of these forms are required in all circumstances, as will be evident, and some may be filed at the conclusion of the 90-day period. Many of the forms are different in Philadelphia County. The forms include the following:

> The Civil Cover Sheet, which identifies the parties and the type of legal action: divorce. This is completed when the Complaint is filed, and the prothonotary assigns a docket number to the action. (This form is not used in Philadelphia County.)
> The Notice to Defend and Claim Rights, which serves as a summons, warns the Defendant that a failure to respond means a default judgment may be entered against him or her. (In Philadelphia County, the Notice to Defend and Claim Rights is incorporated on the first page of the Complaint in Divorce, so people filing there omit this form.) This form informs the Defendant that if he or she does not file a claim for alimony, division of property, lawyer’s fees or expenses before a divorce or annulment is granted, he or she may lose the right to claim them.
> The Complaint in Divorce, which is the primary form, identifies the parties and cites the reason for the divorce.
> The Affidavit, which certifies the truth of the Complaint, is attached to it. (The Affidavit is not used in Philadelphia County, which uses a verification at the end of the complaint.)
> The Court of Common Pleas Intake form, which provides the court with basic information, i.e., if the marriage is with or without children and if there is a custody filing for children under 18. (This form is not used in Philadelphia County.)
> The Domestic Relations Income and Expense Statement, which provides the court with information about spouses’ employment, available health insurance and income. (This form is not used in Philadelphia County.)
> The Notice of File Social Security Numbers form, which provides the prothonotary the Social Security numbers of both spouses.

Ninety days after the filing of the Complaint, the following documents must be filed:

> The Marital Property Settlement Agreement, which spells out the terms and conditions of the division and distribution of the marital estate. Except in Philadelphia County, there is no preapproved, standard form for this agreement, and a lawyer generally writes one customized to the circumstances of the divorcing couple.
`> The Acknowledgment(s), which are attached to the Marital Property Settlement Agreement, is/are signed by the defendant and the plaintiff certifying the truth of the Marital Property Settlement Agreement.
> The Affidavit(s) of Consent/Consent Waiver(s), which are each signed by each spouse, certify that the plaintiff and the defendant both agree to the divorce. (In Philadelphia County, both parties sign a Waiver of Notice of Intention to Request Entry of a Divorce Decree instead of the Affidavit(s) of Consent/Consent Waiver(s).)
> The Support Guideline Computation - Child Support, which illustrates the calculations used to determine child support, if applicable.
> Notice of Intention to Request Entry of Divorce Decree, which informs the Defendant that unless he or she answers, an entry of divorce will be made.
> The Praecipe to Transmit Record, which requests that the Prothonotary transmit all the divorce paperwork to the court in preparation for the divorce decree. (Philadelphia County has its own form for the praecipe.)
> The Decree of Divorce, signed by the judge, which ends the marriage. (Philadelphia county has two forms -- one entitled "Decree" is used for divorces with a Marital Property Settlement, the other entitled "Decree and Order" for divorces without a Marital Property Settlement.)
> Record of Divorce or Annulment, which is used after the divorce has been granted. This information is conveyed to the Vital Records office of the Department of Health. (Philadelphia County has its own form.)
> Notice of Intention to Retake Prior Name, which is used when one spouse, usually the wife, wants to reclaim her birth name. This form may be filed with the Praecipe to Transmit Record, and should be filed no later than five days from the entry of the Decree of Divorce.

The Notice to Defend and Claim Rights, the Complaint in Divorce and the Acknowledgment are served on the defendant as part of the service of process.

In Philadelphia County, the general trajectory of the Mutual Consent Divorce is generally the same as other Pennsylvania county. However, Philadelphia County has other procedures and unique forms that must be used there. The Mutual Consent Divorce begins with the filing of the Complaint for Divorce and a Domestic Relations Information Sheet, which provides basic information about the couple and their children. Both the Complaint and the Information Sheet are forms unique to Philadelphia County.

Ninety days after the filing of the Complaint, the following documents must be filed using the Philadelphia County forms as applicable:

> The Martial Property Settlement Agreement. (This is a special form in this county.)
> Acknowledgment, one each signed by both parties.
> A Waiver of Notice of Intention to Request Entry of Divorce Under §3301(c), signed by Plaintiff and Defendant.
> A Notice of Intention to Request Entry of § 3301(d) Divorce Decree, if the spouse is not represented by an attorney; or Notice of Intention to Request Entry of Divorce Under Section 3301(c) if the spouse is represented by an attorney, signed by the Plaintiff.
> The Praecipe. (This is a form unique to Philadelphia.)
> The Divorce Decree. (In Philadelphia County this is obtained from the family court.)
> Record of Divorce or Annulment.
> Notice of Intention to Retake Prior Name is used when one spouse, usually the wife, wants to reclaim her birth name. This form may be filed with the Praecipe to Transmit Record, and should be filed no later than five days from the entry of the Decree of Divorce.

In the Complaint, the plaintiff also refers to §3301(c) ("Mutual Consent") in case he or she manage an agreement with the other spouse, but the Complaint cites §3301(d) ("Irretrievable breakdown") as the ground for the action.

The action begins with the filing of the Civil Cover Sheet, the Notice to Defend and Claim Rights, the Complaint in Divorce, the Affidavit, the Court of Common Pleas Intake, the Domestic Relations Income and Expense Statement. These forms are identical to the forms filed in a Mutual Consent Divorce, and with the same exceptions noted above for Philadelphia County. Later, to conclude the case, the Support Guideline Computation - Child Support, Notice of Intention to Request Entry of Divorce Decree, the Praecipe to Transmit Record, the Notice to File Social Security Numbers, Decree of Divorce, Record of Divorce or Annulment, Notice of Intention to Retake Name are also filed in the same way.

At the onset at least, in a standard uncontested divorce, a Marital Property Settlement, Acknowledgment(s) and Affidavit(s) of Consent are absent. If the couple achieve an agreement before a divorce hearing, the plaintiff must file the Marital Property Settlement Agreement, Acknowledgment(s), Affidavit(s) of Consent. These forms are filed as would be done if the divorce moved by Mutual Consent.

Like the Mutual Consent Divorce, Philadelphia County uses its own forms for a standard uncontested divorce. These include the Domestic Information Sheet and the Complaint in Divorce. In a standard uncontested divorce, the plaintiff must also complete a Plaintiff’s Affidavit Under Section 3301(d) of the Divorce Code. To complete the filing, the plaintiff must file Notice of Intention to Request Entry of § 3301(d) Divorce Decree (Cases Under Section 3301(c) of the Divorce Code, if the spouse is not represented by an attorney; or Notice of Intention to Request Entry of Divorce (for cases under Section 3301(c), if he or she is represented by an attorney); and the Praecipe to Transmit Record.

For divorces with a Marital Property Settlement Agreement, the Divorce Decree is entitled "Decree"; for those without a settlement, it is entitled "Decree and Order." In addition, the Record of Divorce or Annulment and the Notice to Intention to Retake Prior Name must also be filed. If agreement is reached along the way, the parties must file a Marital Property Settlement Agreement, Acknowledgment(s), one each by each spouse and attached to the settlement agreement, and Waivers of Notice to Request Entry of a Divorce Decree Under § 3301(c) of the Divorce Code (signed, respectively, by the plaintiff and by the defendant).

In the case of a contested divorce, almost all of the forms and filing procedures are identical to those for an uncontested divorce. Philadelphia has its own forms, which are identical to those used in that county for an uncontested divorce.

Two additional forms must be added after the initial filing in most counties in Pennsylvania. These are the Notice of Intention to Request Entry of Divorce Decree and the Counteraffidavit Under § 3301(d).

Both these forms must be served with the Complaint and before submission of the final documents. The Notice informs the Defendant that if he or she does not answer the Plaintiff’s action, the court can enter a final decree of divorce. The Counteraffidavit states that the Defendant objects to the action because 1) the parties have not lived separate and apart for two years and 2) the marriage is not irretrievably broken.

Moreover, In Philadelphia County, the Plaintiff must file a Notice of Intention to Request Entry of § 3301(d), if the spouse is not represented by an attorney; or Notice to Request Entry of Divorce (Cases Under § 3301(c), if the spouse is represented by an attorney.

If a spouse disappears and/or will not accept Service, the Plaintiff must serve Notice by serving his or her spouse the process by certified mail/ return receipt requested at his or her last known address. If that fails to produce a response, the Plaintiff must serve Notice by Publication. This requires a good faith effort to locate the missing spouse, following by publication of the Notice over a period of week in a newspaper.