1045 Proposed amendments to Rules 1920.42, 1920.72 and 1920.73; recommendation 43

Title 231--RULES OF
CIVIL PROCEDURE

PART I.  GENERAL

[231 PA. CODE CH. 1920]

Proposed Amendments to Rules 1920.42, 1920.72 and 1920.73; Recommendation 43

[26 Pa.B. 2992]

   The Domestic Relations Committee proposes the following amendments to the Rules of Civil Procedure relating to divorce. The committee solicits comments and suggestions from all interested persons prior to submission of the proposed rule to the Supreme Court.

   Written comments relating to the proposed amendments must be received no later than August 23, 1996, and must be directed to Linda C. Liechty, Esquire, Executive Director, Domestic Relations Committee, 429 Forbes Avenue, Suite 300, Pittsburgh, PA 15219, FAX [phone].

Annex A

TITLE 231.  RULES OF CIVIL PROCEDURE

PART I.  GENERAL

CHAPTER 1920.  ACTIONS OF DIVORCE OR FOR ANNULMENT OF MARRIAGE

Rule 1920.42.  Affidavit and Decree under [Section] § 3301(c) or § 3301(d)(1) of the Divorce Code. Notice of Intention to Request Entry of Divorce Decree in [Section] § 3301(c), § 3301(d)(1)(i) Divorces. Counter-Affidavit.

   (a)  If a complaint has been filed requesting a divorce on the ground of irretrievable breakdown and

   (1)  both parties have filed an affidavit under [Section] §  3301(c) of the Divorce Code substantially in the form prescribed by Rule 1920.72(b), or

   (2)  either party has filed a [Section] § 3301(d) affidavit under [Section] § 3301(d) of the Divorce Code substantially in the form prescribed by Rule 1920.72[(c)](d) the averments of which the other party has admitted or failed to deny, the prothonotary on praecipe in the form prescribed by Rule 1920.73(b) shall transmit the record to the court, which shall review the record and enter the appropriate decree. No master shall be appointed.

   (b)  The affidavit required by [Section] § 3301(c) of the Divorce Code must have been executed

*      *      *      *      *

   (d)(1)  Except as provided in (e), no decree shall be entered by the court under [Section] § 3301(c) or § 3301(d)(1)(i) of the Divorce Code unless a notice of intention to request entry of divorce decree, substantially in the form prescribed by Rule 1920.73(a), was mailed or delivered[, at least twenty days prior to the date of the filing of the praecipe to transmit the record,] to the attorney of record of the party against whom the decree is to be entered or, if there is no attorney of record, to the party, at least twenty days prior to the date of the filing of the praecipe to transmit the record. [A copy of the notice shall be attached to the] The praecipe [which] shall state the date and manner of service of the notice, a copy of which shall be attached.

   (2)  If the party against whom the decree is to be entered has no attorney of record, the notice required by subdivision [(c)(1)] (d)(1) shall be accompanied by a form counter-affidavit substantially in the form prescribed by Rule 1920.72[(d)] (e) [which the other party may use to deny allegations of the Section 3301(d) affidavit or to claim economic relief under the Divorce Code].

   (e)  Notice of intention to request entry of divorce decree shall not be required prior to entry of a divorce decree

   (1)  under § 3301(c) where the parties have executed and filed with the prothonotary a waiver of notice substantially in the form set forth in Rule 1920.72(c); or

   (2)  under § 3301(d) where the court finds that no appearance has been entered on defendant's behalf and that defendant cannot be located after diligent search.

   Official Note: This counter-affidavit will be filed only if the [defendant] party against whom the decree is to be entered has not previously denied the allegations of the [plaintiff's] other party's affidavit or has not previously claimed economic relief by counterclaim or petition.

Rule 1920.72.  Form of Complaint. Affidavit under [Section] § 3301(c) or 3301(d) of the Divorce Code. Counter-Affidavit. Waiver of Notice of Intention to Request Decree under § 3301(c).

   (a)  The complaint in an action of divorce under [Section] § 3301(c) or 3301(d) shall begin with the Notice to Defend and Claim Rights required by Rule 1920.71 and shall be substantially in the following form:

*      *      *      *      *

   (b)  The affidavit of consent required by [Section] § 3301(c) of the Divorce Code and Rule 1920.42(a)(1) shall be substantially in the following form:

(Caption)

AFFIDAVIT OF CONSENT

   1.  A Complaint in divorce under [Section] § 3301(c) of the Divorce Code was filed on ______ .
(Date)

   2.  The marriage of plaintiff and defendant is irretrievably broken and ninety days have elapsed from the date of filing and service of the Complaint.

*      *      *      *      *

   (c)  The waiver permitted by Rule 1920.42(e) shall be in substantially the following form:

*      *      *      *      *

Date:  ______               __________
[Plaintiff/Defendant]
(Plaintiff)(Defendant)

   (d)  The affidavit required by [Section] § 3301(d) of the Divorce Code and Rule 1920.42(a)(2) shall be substantially in the following form:

*      *      *      *      *

   (e)(1)  The counter-affidavit prescribed by Rule 1920.42(d)(2) shall be substantially in the following form in a § 3301(c) divorce:

(Caption)

COUNTER-AFFIDAVIT UNDER § 3301(c)
OF THE DIVORCE CODE

   I wish to claim economic relief which may include alimony, division of property, lawyer's fees or expenses or other important rights.

   I understand that I must file my economic claims with the prothonotary in writing and serve them on the other party. If I fail to do so before the date set forth on the Notice of Intention to Request Divorce Decree, the divorce decree may be entered without further delay.

   I verify that the statements made in this counter-affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities.

Date:  ______               __________
(Plaintiff)(Defendant)

NOTICE: If you do not wish to claim economic relief, you should not file this counter-affidavit.

   (2)  The counter-affidavit prescribed by Rule 1920.42[(c)](d)(2) shall be substantially in the following form in a § 3301(d) divorce:

(Caption)

COUNTER-AFFIDAVIT UNDER [SECTION] § 3301(d) OF THE DIVORCE CODE

*      *      *      *      *

   2.  Check either (a) or (b):

*      *      *      *      *

   (b)  I wish to claim economic relief which may include alimony, division of property, lawyer's fees or expenses or other important rights.

   I understand that in addition to checking (b) above, I must also file all of my economic claims with the prothonotary in writing and serve them on the other party. If I fail to do so before the date set forth on the Notice of Intention to Request Divorce Decree, the divorce decree may be entered without further delay.

   I verify that the statements made in this counter-affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities.

Date:  ______               __________
(Plaintiff)(Defendant)

   Notice: If you do not wish to oppose the entry of a divorce decree and you do not wish to make any claim for economic relief, you [need] should not file this counter-affidavit.

Rule 1920.73.  Notice of Intention to Request Entry of Divorce Decree. Praecipe to Transmit Record Forms.

   (a)(1)  The notice of the intention to request entry of divorce decree prescribed by Rule 1920.42[(c)](d) shall be substantially in the following form if there is an attorney of record:

(Caption)

NOTICE OF INTENTION TO REQUEST ENTRY
OF DIVORCE DECREE

TO:  ______
[(Plaintiff/Defendant)] (Plaintiff)(Defendant)

   ______ [(Plaintiff/Defendant)] (Plaintiff)(Defendant) intends to file with the court the attached Praecipe to Transmit Record on or after ______ , 19____ , requesting that a final decree in divorce be entered.

_________________
Attorney for [(Plaintiff/Defendant)]
(Plaintiff)(Defendant)

   (2)(i)  The notice of the intention to request entry of a § 3301(c) divorce decree prescribed by Rule 1920.42(d) shall be substantially in the following form if there is no attorney of record:

(Caption)

NOTICE OF INTENTION TO REQUEST ENTRY OF § 3301(c) DIVORCE DECREE

TO:  ______
(Plaintiff)(Defendant)

   You have signed a § 3301(c) affidavit consenting to the entry of a divorce decree. Therefore, on or after ______ , 19____ , the other party can request the court to enter a final decree in divorce.

   Unless you have already filed with the court a written claim for economic relief, you must do so by the date in the paragraph above, or the court may grant the divorce and you will lose forever the right to ask for economic relief. YOU MAY CLAIM THESE RIGHTS BY FILING WITH THE PROTHONOTARY THE FORM COUNTER-AFFIDAVIT FORM WHICH ACCOMPANIES THIS NOTICE.

   YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.

_________________
(Name)
_________________
(Address)
_________________
(Telephone)

   Official Note: The above lines are to be completed with the name, address and telephone number of the officer, organization, agency or person designated by the court in accordance with Rule 1018.1(c).

   The date to be inserted in the first paragraph of the notice must be at least twenty days after the date on which the notice was mailed or delivered.

   (ii)  The notice of the intention to request entry of § 3301(d) divorce decree prescribed by Rule 1920.42[(c)](d) shall be substantially in the following form if there is no attorney of record:

(Caption)

NOTICE OF INTENTION TO REQUEST ENTRY OF § 3301(d) DIVORCE DECREE

TO:  _________________
[(Plaintiff/Defendant)] (Plaintiff)(Defendant)

   You have been sued in an action for divorce. You have failed to answer the complaint or file a counter-affidavit to the [plaintiff's] § 3301(d) affidavit. Therefore, on or after ______ , 19____ , the [plaintiff] other party can request the court to enter a final decree in divorce.

   If you do not file with the prothonotary of the court an answer with your signature notarized or verified or a counter-affidavit by the above date, the court can enter a final decree in divorce. Unless you have already filed with the court a written claim for economic relief, you must do so by the above date or the court may grant the divorce and you will lose forever the right to ask for economic relief. A COUNTER-AFFIDAVIT WHICH YOU MAY FILE WITH THE PROTHONOTARY OF THE COURT IS ATTACHED TO THIS NOTICE.

   YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.

_________________
(NAME)
_________________
(ADDRESS)
_________________
(TELEPHONE NUMBER)

   NOTE: The above lines are to be completed with the name, address and telephone number of the officer, organization, agency or person designated by the court in accordance with Rule 1018.1(c).

   The date to be inserted in the first paragraph of the notice must be at least twenty days after the date on which the notice was mailed or delivered.

   (b)  The praecipe to transmit the record prescribed by Rule 1920.42 shall be in substantially the following form:

(Caption)

PRAECIPE TO TRANSMIT RECORD

To the Prothonotary:

   Transmit the record, together with the following information, to the court for entry of a divorce decree:

   1.  Ground for divorce: irretrievable breakdown under [Section] § (3301(c) (3301(d)(1)) of the Divorce Code. (Strike out inapplicable section).

   2.  Date and manner of service of the complaint: ____ .

   3.  (Complete either paragraph (a) or (b).)

   (a)  Date of execution of the affidavit of consent required by [Section] § 3301(c) of the Divorce Code: by plaintiff _________________ ; by defendant _________________ .

   (b)(1)  Date of execution of the [plaintiff's] affidavit required by [Section] § 3301(d) of the Divorce Code: _________________ ; (2) Date of filing and service of the plaintiff's affidavit upon the [defendant] respondent:_________________ .

   4.  Related claims pending: ______ .

   5.  [Date and manner of service of the notice of intention to file praecipe to transmit record, a copy of which is attached, if the decree is to be entered under Section 3301(d)(1)(i) of the Divorce Code.]

   (Complete either (a) or (b).)

   (a)  Date and manner of service of the notice of intention to file praecipe to transmit record, a copy of which is attached: __________

   (b)  Date plaintiff's Waiver of Notice in § 3301(c) Divorce was filed with the prothonotary: __________

   Date defendant's Waiver of Notice in § 3301(c) Divorce was filed with the prothonotary: __________

__________
Attorney for (Plaintiff)(Defendant)

[Pa.B. Doc. No. 96-1045. Filed for public inspection June 28, 1996, 9:00 a.m.]