by Gerald J. Schorr

A bill to shorten the waiting period to establish no-fault grounds for divorce for certain Pennsylvania litigants has passed the state House and been voted out of the Senate Judiciary Committee. If House Bill 380 comes up for a vote in the state Senate, lawmakers should vote no.

Under the bill, parties who agree that a marriage is over (“irretrievably broken”) may still establish grounds for no-fault divorce once 90 days have passed after service of a complaint in divorce. But parties who do not agree that a marriage is over will have a one­ year waiting period to establish no-fault grounds rather than the current two-year waiting period. The proposed amendment retains the requirement that the parties live apart during the waiting period.

The Pennsylvania Bar Association and family law attorneys in general have welcomed the proposed change. Assuming that a shorter waiting period actually shortens the time it takes to finalize the divorce, by no means a foregone conclusion, the potential benefits are many.

There is the emotional turmoil and stigma of divorce for children, which cannot end soon enough. The financial uncertainty of how the assets will be divided, and whether there will be postdivorce financial obligations such as alimony, would be resolved sooner. Quicker divorces would allow each side the opportunity to explore new commitments sooner. The prospect of postdivorce healing between the parties and cooperative resolution of issues such as custody and child support would be expedited. And then there are the legal fees: They would end sooner and should be less than with a two-year waiting period.

What can be wrong with this picture?

The proposal overlooks a critically important dimension of the divorce process: the impact on the economically weaker spouse.

In most divorces, financial earning power is unequal, and the separation is invariably harder on the spouse with the lesser or nonexistent earning power (almost always a “she” in a gender-traditional marriage). In addition to cash shortfalls and uncertainty about long-term finances, the financially weaker spouse usually has custody and, with it, the heightened emotional demands of children navigating a new schedule and new emotional terrain. Acute depression and other mental-health issues are also no strangers to marital breakups, often requiring prolonged treatment.

Finally, and perhaps most importantly, financially weaker spouses face the challenge of retooling for an ever-changing 21st-century economy. A tall order under the best of circumstances, reentering the job market in one’s 40s, 50s, and even 60s while divorcing is a daunting task. Just ask the highly educated, highly skilled, middle-aged women our practice has represented these past 30 years.

Like many jurisdictions, Pennsylvania provides interim remedies intended to blunt the financial impact of the separation on the dependent spouse. These remedies include spousal support, continuation of health-insurance coverage, and, depending on the circumstances, exclusive occupancy of the marital residence and continued life­ insurance coverage. The longer these remedies are in place, the more likely it is that the parties will recover from the shock of the separation, provide much-needed extra nurture for children, and develop ways to contribute to their own support.

Thus the two-year waiting period affords many dependent litigants invaluable breathing room: financial, psychological, and parental. Faced with the other side’s request to end the marriage under the 90-day no-fault option – three months after a divorce has been filed and well within the “aftershock” period – it is no wonder that many dependent spouses say, “No, thanks.” Even if psychologically ready, the lack of meaningful employment or assurances of a reasonable financial settlement render dependent spouses ill-equipped to risk losing a two-year safety net of support, health insurance, and other interim remedies. They need more time.

When enacted in 1980, the Pennsylvania divorce code provided for a three-year waiting period for no-fault grounds for parties who did not agree that the marriage was over. That was reduced to two years in 1988. If passed, and if the one-year waiting period does in fact actually shorten the period that it takes to divorce, it would further reduce support, health benefits, and other interim remedies, and leave dependent spouses less time to acclimate financially and emotionally to the divorce.

Perhaps the one-year waiting period is a way station toward further reductions in the waiting period and, with it, interim remedies? All legislation must balance competing interests, but House Bill 380, as drafted, clearly tilts precariously against the more vulnerable party.

Gerald J. Schorr is a partner in the Center City-based law firm of Astor Weiss Kaplan & Mandel and cochair of the firm’s family law department. GSchorr@astorweiss.com (mailto:GSchorr@astorweiss.com)