“Alternative Pleading in a Divorce Action? Not so Fast!” by James W. Cushing, Esquire
When filing a divorce complaint, it appears that a typical lawyer’s standard pleading philosophy is to make as many claims as theoretically possible, relying on the court or opposing counsel to take the appropriate action to strike the weakest claims; a strategy often referred to as “throw as much mud against the wall and see what sticks!” The Pennsylvania Rules of Civil Procedure (Pa. R.C.P. 1020 and 1021) appear to support such a strategy by specifically allowing alternative pleading as well as pleading contradictory claims. In fact, the Supreme Court of Pennsylvania has explicitly ruled that “[t]hese rules reflect the general principle that plaintiffs should not be forced to elect a particular theory in pursuing a claim.” Republic Intermodal Corporation and Sullivan Lines, Inc. v. Doris Leasing Company, Inc. and Union National Bank of Pittsburgh, 473 Pa. 614 (1976).
When filing a divorce complaint, it appears that most attorneys maintain the aforesaid strategy by simultaneously making claims for a divorce under Sections 3301(c), 3301(d), and sometimes 3301(a) of the Pennsylvania Divorce Code, as standard practice. For the benefit of those who are not familiar with the Divorce Code, Section 3301(c) permits a no-fault divorce after the filing of Affidavits of Consent by both parties and ninety (90) days have elapsed after the filing of a divorce action. Section 3301(d) allows for a no-fault divorce to be unilaterally secured by one spouse after two (2) years of separation. 3301(a) is a traditional and old-fashioned fault-based divorce claim.
Although the Rules of Civil Procedure appear to allow for alternative pleading, even in the context of divorce, there are a growing number of cases that appear to proscribe alternative pleading in divorce in certain circumstances. One question which has arisen is: can a plaintiff in a divorce action, filing under Section 3301(c) and 3301(d) and/or 3301(a) refuse to file an Affidavit of Consent to consent to his own divorce action? It would appear, under the above Rules and case law that a plaintiff in a divorce action has the choice of proceeding under whichever claim he wishes. However the courts have increasingly limited this right under certain circumstances.
Pennsylvania courts, in an increasing number of cases, have ruled that refusing to allow a plaintiff’s divorce action to progress through the quickest route possible unfairly and inappropriately prejudices the opposing party. Consequently, if a plaintiff files under Section 3301(c), the courts have increasingly taken the position that one cannot refuse to file an Affidavit of Consent under Section 3301(c). The prejudice to the opposing party is fairly obvious: first, the filing of a divorce action is often accompanied by the filing for (and granting of) alimony pendente lite. Alimony pendente lite is support for the opposing party which can only be received during the pendency of a divorce action. Therefore, taking action to prolong one’s own divorce action only serves to extend the time the opposing party has to pay alimony pendente lite without recourse to stop it. Second, it prolongs the time the parties are married, which can have any number of implications. The courts have taken the position that the refusal to consent to one’s own divorce action is an abuse of the divorce process and one cannot receive the benefit of the divorce action without taking reasonable steps to expeditiously conclude it.
Although the courts have ruled that one cannot refuse to file an Affidavit of Consent, can a court force a party to execute the affidavit? Thus far, the courts have been reluctant to force the execution of an Affidavit of Consent. The cases deciding this issue to date have established the penalty for refusing to consent to one’s own divorce to be the dismissal of the divorce action in toto, which, by definition, simultaneously dismisses the alimony pendente lite. It does not yet appear that sanctions against the party refusing to consent to his own divorce action are among the penalties to be assessed, but the cases do not proscribe such a result.
A subset of cases involving a party refusing to consent to his divorce is growing in the circumstance where the party is receiving spousal support rather than alimony pendente lite. The crucial distinction between spousal support and alimony pendente lite is that spousal support is not dependant upon the existence of a divorce action. Spousal support can be successfully requested and received by a spouse absent a divorce action, but is definitively concluded when the parties are divorced. Therefore, dismissing the divorce action as a penalty for refusing to file an Affidavit of Consent, does not resolve the prejudice of having an artificially prolonged spousal support order in place against the opposing party. In this instance, judicial economy arguments are raised in the context of the individual factual circumstances of each case. The specific issue is whether dismissing the divorce claim has any positive effect on the spousal support claim. If not, then dismissing the claim may not be a viable alternative to correct the prejudice against the opposing party. It is in this situation that sanctions are most likely to be assessed to remedy the clearly unjust situation.
In the final analysis, when filing for a divorce, one has to be aware of the implications of the existence of an order for spousal support or alimony pendente lite on the speed in which one would like divorce action to proceed. Relatedly, if one files under Section 3301(c) of the Divorce Code, one must be prepared to file an Affidavit of Consent, otherwise one should only proceed under the other sections of the Divorce Code. Relevant cases on this topic are: Skelly v. Skelly, 36 Pa.D.C.4th 189 (1997); Norris v. Norris, 10 Pa. D.&C.4th 207 (1991); Mellot v. Mellot, 1 Pa.D.&C.4th 618 (1988); Burk v. Burk, 38 Pa.D.&C.3d 558 (1986); Way v. Way, 35 Pa.D.&C.3d 653 (1985); Rueckert v. Rueckert, 20 Pa.D.&C.3d 191 (1981).
This Article also appeared in the Philadelphia Bar Association’s “Upon Further Review” on November 10, 2009.
This article was also reprinted in the “Pennsylvania Family Lawyer” on December 2010.