Untying the Knot: It’s Time for Pennsylvania to Cut the Divorce Waiting Period
November 23, 2015
Untying the knot: It’s time for Pennsylvania to cut the divorce waiting period
by Paul Helvy
Maximizing the stability of marriage while minimizing the damage of divorce should be the goal of divorce law in Pennsylvania.
Sadly, the intent is there, but the effect is not.
Today’s law mandates a two-year waiting period for a no-fault divorce, which has the unintended consequence of promoting litigation rather than the bond of marriage and the well-being of children.
After more than two decades of studying the process, legislation finally appears to be advancing to cut the waiting period from two years to one. Sponsored by state Rep. Tarah Toohil, R-Luzerne, the bill was overwhelmingly approved by the House of Representatives this month. Because the Pennsylvania Bar Association has seen the real-world ramifications of divorce law firsthand, we support House Bill 380, which moves to the Senate for consideration.
The bill would change the mandatory period of separation from two years to one year in a no-fault divorce based on irretrievable breakdown. After a year, litigants would be permitted to start the process of dividing assets and determining whether alimony is owed.
While this change might appear to be rather arcane and inconsequential, it can, in fact, have profound benefits.
At a time rife with turmoil, the two-year waiting period currently in law can be emotionally devastating for children in the middle of a contentious divorce. Allowing the wound of divorce to fester frequently results in greater emotional and economic damage.
If divorce is delayed and the battle is prolonged, children often do not advance developmentally while the argument phase continues, family therapists who testified at a September House Judiciary Committee hearing found. Children are caught in limbo, unsure of where they will live, who they will live with, and where they will go to school.
And sadly, their experience showed that marriage counseling rarely secured the hoped-for reconciliation.
Money that should be devoted to children is diverted to legal fees.
Other effects are evident. Under the law’s two-year waiting period, a spouse overcome by bitterness can perpetuate that hostility by willfully delaying, for the full two years, the commencement of the process of addressing the economic issues associated with divorce. As long as the courts allow a two-year delay, it gives angry spouses continued control over their partners. During this time, the probability of additional unnecessary litigation is significantly increased which results in both parties almost invariably incur additional fees.
In other cases, the two-year window might encourage divorcing parties to deny or avoid reality if they are ambivalent. But unfortunately, again, it does not help parties reconcile, as it was hoped.
Other states have seen the need for more expedited closure for families that are dissolving. The divorce waiting periods for surrounding states range from six months to one year. In some states, there is no waiting period. Pennsylvania, at two years, is an outlier.
The goal of a waiting period is to give the parties time to reflect, reconcile, and work on decisions about finances, schools and homes. The objective is to minimize the collateral damage and think about the future.
But prolonging the pain of divorce for two years usually delays resolution for three to five years after the divorce is filed. This slow-motion dissolution increases legal costs, escalates the level of litigation and conflict between the parties, and causes added strain and costs on children and an already overburdened court system.
Tragically, the two-year waiting period only serves to add to the hurt for the couple and their children.
Taking a year to work through the issues is a fair middle ground. If the waiting period is too long, the settlement of financial matters is delayed, and the uncertainty and instability that has haunted the family is exacerbated.
A shorter waiting period enables financial issues to be resolved more quickly and a stable routine for the children to be created more rapidly.
While there is no magic number, clearly delays in untying the knot can grow more painful and pricey over time. By at least cutting the waiting period in half, closure and certainty can eclipse chaos and confusion.
J. Paul Helvy is chair of the Family Law Practice Group at McNees Wallace & Nurick LLC and is the immediate past chair of the Pennsylvania Bar Association, Family Law Section. He can be reached at 717-237-5343 or firstname.lastname@example.org
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