Hurry Up and Wait: Why Filing for Divorce May Not be in Your Best Interests
November 08, 2017 | Divorce, Legal Perspective
When they first meet with us, many clients, justifiably, are eager to file a divorce action, and end the process as quickly as possible. Indeed, even clients who do not want to be divorced want to end the process as quickly and painlessly as possible. Yet, there may be strategic reasons to wait.
Pittsburgh divorce attorneys may file complaints in divorce for a myriad of reasons — to establish a clear date of separation, for exclusive possession of the marital residence, or to conduct discovery. In some cases, filing a divorce serves a strategic purpose. In every case, we like to have an in-depth conversation about the pros and cons of filing the complaint in divorce. Frequently, it is not in the client’s best interests to file the complaint in divorce, especially if they are the wage-earning spouse.
The Divorce Code offers two different paths to a no-fault divorce: (1) mutual consent of both spouses after a 90 day “cooling-off” period; or (2) if one spouse refuses to give consent, the other can proceed not earlier than one-year from the date of separation (or, two years if the separation occurred prior to December 5, 2016). During the separation period, the wage-earning spouse might have to pay spousal support to the other spouse. The interplay of these laws can create strategic opportunities.
Rueckert v. Rueckert
In 1981, Judge Lawrence W. Kaplan, of the Court of Common Pleas of Allegheny County, decided Rueckert v. Rueckert, 20 Pa. D. & C. 3d 191. There, a wage-earning spouse complained his wife was dragging her feet, all for the strategic purpose of collecting as much spousal support as possible during the (then three-year) waiting period. Even though she had filed the divorce, she refused to sign consent forms after the 90-day waiting period.
In his decision, Judge Kaplan recognized he could not force the support-collecting spouse to sign consent forms, which would allow the case to move forward. Judge Kaplan realized, however, he could dismiss the divorce action altogether, since the support-collecting spouse was not willing to proceed. The key fact in the Rueckert case is this: The wife who was collecting support had been involved in an extramarital affair, which is recognized in Pennsylvania as a defense to spousal support, except after a divorce action has been filed. If Judge Kaplan dismissed the divorce action, then the husband could stop paying spousal support. This case became famous around Pennsylvania for solving the problem, in many cases, where a spouse is delaying the progress of a divorce just for financial gain (in the form of spousal support). Yet, it does not address those cases where the delaying spouse has not engaged in marital fault.
Hoffman v. Hoffman
The Superior Court of Pennsylvania in Hoffman v. Hoffman, 504 A.2d 356 (Pa. Super. 1986) adopted the logic of Judge Kaplan’s Rueckert decision, holding “that appellant should not be allowed to withhold her consent to the divorce while simultaneously seeking alimony pendente lite[.]” Id. at 283-84.
Consider Options With a Pittsburgh Divorce Attorney
In the early stages of a marital separation, both parties need to consider whether it is in their best interests to immediately file a complaint in divorce. For the wage-earning spouse, waiting for his/her former spouse to file the complaint might save a significant amount of money in alimony pendente lite. The dependent spouse may not want to file a complaint in divorce, or run the risk of being forced to move the case forward prior to the one-year statutory waiting period. On the other hand, a spouse who stands to benefit from spousal support for a year or more might wish to delay the filing of a divorce action.
Whether or not to file a divorce is one of the first legal strategy decisions spouses may face when they become separated. Discussing the pros and cons with an experienced divorce lawyer may lead to a surprising, but important, decision. If you are separated and considering divorce, contact one of our Pittsburgh divorce attorneys at Pollock Begg Komar Glasser & Vertz LLC by calling (412) 471-9000 or filling out our online contact form.
A certified collaborative lawyer, Robert D. Raver’s practice as an associate attorney at Pollock Begg Komar Glasser & Vertz LLC spans all aspects of matrimonial law. A natural writer and lecturer, Bob is frequently sought after to write and editor articles, case notes, training materials and lectures alongside his peers. Founding Partners David S. Pollock and Daniel H. Glasser have both tapped Bob to co-author different materials on tax aspects as well as ethics materials for family law.