What's New / Errata

PLEASE REPLACE ORPHANS’ COURT RULE 1.1 AND RULE 5.50, LOCATED IN THE TWENTY-FIRST EDITION OF THE PENNSYLVANIA ORPHANS’ COURT LAWSOURCE, WITH THE RULES BELOW:

Rule 1.1. Short Title and Citation.

These rules shall be known as the Pennsylvania Rules of Orphans’ Court Procedure and may be cited as ‘‘Pa.R.O.C.P. ______ ’’

Comment

The previous use of ‘‘Pa. O.C. Rule’’ to cite the Pennsylvania Rules of Orphans’ Court Procedure may not serve as a basis to invalidate a reference to that authority.

Source

The provisions of this Rule 1.1 amended June 10, 2021, effective October 1, 2021, 51 Pa.B. 3443.

Starting on page 701 of the Domestic Relations Lawsource, replace the existing Pa.R.Civ.P. 1910.11 found in your book with the following:

Rule 1910.11. Office Conference. Subsequent Proceedings. Order.

 (a)  Office Conference.

   (1)  A conference officer shall conduct the office conference.

   (2)  A lawyer serving as a conference officer employed by, or under contract with, a judicial district or appointed by the court shall not practice family law before a conference officer, hearing officer, or judge of the same judicial district.

   Note: Conference officers preside at office conferences under Pa.R.C.P. No. 1910.11. Hearing officers preside at hearings under Pa.R.C.P. No. 1910.12. The appointment of a hearing officer to hear actions in divorce or for annulment of marriage is authorized by Pa.R.C.P. No. 1920.51.

 (b)  If a party fails to appear at the conference as directed by the court, the conference may proceed.

 (c)  At the conference, the parties shall provide to the conference officer the following documents:

• the most recently filed individual federal income tax returns, including all schedules, W-2s, and 1099s;
• the partnership or business tax returns with all schedules, including K-1, if the party is self-employed or a principal in a partnership or business entity;
• pay stubs for the preceding six months;
• verification of child care expenses;
• child support, spousal support, alimony pendente lite, or alimony orders or agreements for other children or former spouses;
• proof of available medical coverage; and
• an Income Statement and, if necessary, an Expense Statement on the forms provided in Pa.R.C.P. No. 1910.27(c) and completed as set forth in subdivisions (c)(1) and (2).

   Note:  See Pa.R.C.P. No. 1930.1(b). To the extent this rule applies to actions not governed by other legal authority regarding confidentiality of information and documents in support actions or that attorneys or unrepresented parties file support-related confidential information and documents in non-support actions (e.g., divorce, custody), the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania shall apply.

   (1)  The parties shall provide the conference officer with a completed:

     (i)   Income Statement as set forth in Pa.R.C.P. No. 1910.27(c)(1) in all support cases, including high-income cases under Pa.R.C.P. No. 1910.16-3.1; and

     (ii)   Expense Statement as set forth in Pa.R.C.P. No. 1910.27(c)(2)(A), if a party:

       (A)   claims that unusual needs and unusual fixed expenses may warrant a deviation from the guideline support amount pursuant to Pa.R.C.P. No. 1910.16-5; or

       (B)   seeks expense apportionment pursuant to Pa.R.C.P. No. 1910.16-6.

   (2)  For high-income support cases as set forth in Pa.R.C.P. No. 1910.16-3.1, the parties shall provide to the conference officer the Expense Statement in Pa.R.C.P. No. 1910.27(c)(2)(B).

 (d)  Conference Officer Recommendation.

   (1)  The conference officer shall calculate and recommend a guideline support amount to the parties.

   (2)  If the parties agree on a support amount at the conference, the conference officer shall:

     (i)   prepare a written order consistent with the parties’ agreement and substantially in the form set forth in Pa.R.C.P. No. 1910.27(e), which the parties shall sign; and

     (ii)   submit to the court the written order along with the conference officer’s recommendation for approval or disapproval.

     (iii)   The court may enter the order in accordance with the agreement without hearing from the parties.

   (3)  In all cases in which one or both parties are unrepresented, the parties must provide income information to the domestic relations section so that a guidelines calculation can be performed.

   (4)  In cases in which both parties are represented by counsel, the parties shall not be obligated to provide income information and the domestic relations section shall not be required to perform a guidelines calculation if the parties have reached an agreement about the amount of support and the amount of contribution to additional expenses.

 (e)  At the conclusion of the conference or not later than 10 days after the conference, the conference officer shall prepare a conference summary and furnish copies to the court and to both parties. The conference summary shall state:

   (1)  the facts upon which the parties agree;

   (2)  the contentions of the parties with respect to facts upon which they disagree; and

   (3)  the conference officer’s recommendation; if any, of

     (i)   the amount of support and by and for whom the support shall be paid; and

     (ii)   the effective date of any order.

 (f)  If an agreement for support is not reached at the conference, the court, without hearing the parties, shall enter an interim order calculated in accordance with the guidelines and substantially in the form set forth in Rule 1910.27(e). Each party shall be provided, either in person at the time of the conference or by mail, with a copy of the interim order and written notice that any party may, within twenty days after the date of receipt or the date of the mailing of the interim order, whichever occurs first, file a written demand with the domestic relations section for a hearing before the court.

 (g)  A demand for a hearing before the court shall not stay the interim order entered under subdivision (f) unless the court so directs.

 (h)  If no party demands a hearing before the court within the twenty day period, the interim order shall constitute a final order.

 (i)  If a demand is filed, there shall be a hearing de novo before the court. The domestic relations section shall schedule the hearing and give notice to the parties. The court shall hear the case and enter a final order substantially in the form set forth in Rule 1910.27(e) within sixty days from the date of the written demand for hearing.

 (j)(1) Promptly after receipt of the notice of the scheduled hearing, a party may move the court for a separate listing where:

     (i)   there are complex questions of law, fact or both; or

     (ii)   the hearing will be protracted; or

     (iii)   the orderly administration of justice requires that the hearing be listed separately.

   (2)  If the motion for separate listing is granted, discovery shall be available in accordance with Rule 4001 et seq.

   Note: The rule relating to discovery in domestic relations matters generally is Rule 1930.5.

 (k)  No motion for post-trial relief may be filed to the final order of support.

Adopted April 23, 1981, effective July 22, 1981. Amended October 19, 1983, effective January 1, 1984. November 7, 1988, effective January 1, 1989; September 29, 1989, effective October 15, 1989; March 30, 1994, effective July 1, 1994; December 2, 1994, effective March 1, 1995; September 8, 1995, effective January 1, 1996; May 5, 1997, effective July 1, 1997; May 31, 2000, effective July 1, 2000; August 8, 2006, immediately effective; November 8, 2006, effective February 6, 2007; October 30, 2007, immediately effective; January 12, 2010, effective May 12, 2010; August 26, 2011, effective November 1, 2011; December 23, 2011, effective January 31, 2012; July 2, 2014, effective August 1, 2014; March 4, 2015, effective April 3, 2015; January 5, 2018, effective January 6, 2018; June 1, 2018, effective July 1, 2018; December 28, 2018, effective January 1, 2019; October 19, 2021, effective January 1, 2022.

Explanatory Comment—1994

The domestic relations office conference provided by Rule 1910.11 constitutes the heart of the support procedure. There are two primary advantages to the inclusion of a conference. First, in many cases the parties will agree upon an amount of support and a final order will be prepared, to be entered by the court, thus dispensing with a judicial hearing. Second, those cases which do go to hearing can proceed more quickly because the necessary factual information has already been gathered by the conference officer.

   Subdivision (a)(2)  prohibits certain officers of the court from practicing family law before fellow officers of the same court. These officers are the conference officer who is an attorney (Rule 1910.11), the hearing officer (Rule 1910.12), and the standing or permanent master who is employed by the court (Rule 1920.51). The amendments are not intended to apply to the attorney who is appointed occasionally to act as a master in a divorce action.

   Subdivision (e)(3)  makes clear that even if the parties agree on an amount of support, the conference officer is still empowered to recommend to the court that the agreement be disapproved. This provision is intended to protect the destitute spouse who might out of desperation agree to an amount of support that is unreasonably low or which would in effect bargain away the rights of the children. The officer’s disapproval of the agreement serves to prevent an inadequate order being entered unwittingly by the court.

   The provision for an interim order in subdivision (f) serves two purposes. First, it ensures that the obligee will receive needed support for the period during which the judicial determination is sought. Second, it eliminates the motive of delay in seeking a judicial determination.

   Because the guidelines are income driven, the trier of fact has little need for the expense information required in the Income and Expense Statement. Therefore in guideline cases, the rule no longer requires that expense information be provided. If a party feels that there are expenses so extraordinary that they merit consideration by the trier of fact, that party is free to provide the information. In cases decided according to Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), living expenses are properly considered, and therefore must be presented on the Income and Expense Statement.

Explanatory Comment—1995

Rule 1910.11(e) is amended to eliminate the need for a party to request a copy of the conference summary.

   Because the court is required to enter a guideline order on the basis of the conference officer’s recommendation, there is no need for (g)(2), which provided for a hearing before the court where an order was not entered within five days of the conference. It is eliminated accordingly.

   Pursuant to subdivision (g), support payments are due and owing under the interim order which continues in effect until the court enters a final order after the hearing de novo. The provision for an interim order serves two purposes. First, it ensures that the obligee will receive needed support for the period during which the judicial determination is sought. Second, it eliminates the motive of delay in seeking a judicial determination. Therefore, the plaintiff and the dependent children are not prejudiced by allowing the court sixty days, rather than the original forty-five, in which to enter its final order.

Explanatory Comment—2006

The time for filing a written demand for a hearing before the court has been expanded from ten to twenty days. The purpose of this amendment is to provide ample opportunity for litigants and counsel to receive notice of the entry of the order, to assure Commonwealth-wide consistency in calculation of time for filing and to conform to applicable general civil procedural rules.

   The amendments reflect the separated Income Statement and Expense Statements in Rule 1910.27(c).

Explanatory Comment—2010

When the parties’ combined net income exceeds $ 30,000 per month, calculation of child support, spousal support and alimony pendente lite shall be pursuant to Rule 1910.16-3.1. Rule 1910.16-2(e) has been amended to eliminate the application of Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), in high income child support cases.

Explanatory Comment—2011

The rule has been amended to require that income information be provided in all cases, unless both parties are represented in reaching an agreement, so that a guidelines calculation can be performed. The guidelines create a rebuttable presumption that the amount calculated pursuant to them is the correct amount, so there should be a calculation in every case. If parties agree to receive or to pay an order other than the guideline amount, they should know what that amount is so that they can enter an agreement knowingly. If both parties are represented by counsel, it is assumed that their entry into the agreement for an amount other than a guidelines amount is knowing as it is counsels’ responsibility to advise the parties. In addition, part of the mandatory quadrennial review of the support guidelines mandates a study of the number of cases in which the support amount ordered varies from the amount that would result from a guidelines calculation. Federal regulations presume that if a large percentage of cases vary from the guideline amount, then the guidelines are not uniform statewide.

 

Annotation

In Zimmerman v. Kegel, the Superior Court, in a Non-Precedential Memorandum Decision, held that the plain language of Rule 1910.11 does not require the trial court to consider changes in party income after the conference officer makes his or her support calculation recommendation to the trial court. The court discerned no abuse of discretion in determining that wife failed to prove indignities in order to defeat husband’s claim for spousal support.

The court first acknowledged that Rule 1910.11 clearly states that the parties are to provide information pertaining to their income for the six months preceding the initial hearing before the conference officer. The purpose of this disclosure is to enable the conference officer to calculate a guideline support amount and an order, recommendation, or conference summary, as necessitated by the circumstances. Here, the plain language of Rule 1910.11 does not require the trial court to examine the parties’ income for the six-month period preceding its de novo determination of the parties’ earnings and support obligations, as husband suggested. Nor does Rule 1910.11 provide a procedural mechanism for producing or considering new additional evidence after income evidence has already been received by the conference officer and he or she has made a recommendation to the trial court.

Here, the court found that the trial court determined that husband’s counsel waited until the end of the final hearing, after the trial court announced its findings, to request consideration of wife’s 2020 income. As the trial court properly explained, because more than a year transpired since husband filed his complaint for support, a petition to modify spousal support was the appropriate avenue for requesting additional support due to an alleged change in wife’s income for 2020.

The court noted that neither party filed any type of petition seeking consideration of spousal income for 2020 until after the trial court ruled. Husband did not seek a continuance or specifically request discovery regarding wife’s 2020 income at any of the four de novo hearings. Instead, husband waited until the end of the fourth hearing, after the trial court already valued wife’s 2019 annual income at $325,000, to argue that the trial court should have considered wife’s 2020 income. Thus, the trial court did not preclude husband from presenting evidence of wife’s 2020 income. The court found that it was precluded from considering wife’s 2020 paystub on appeal merely because husband had attached it to the reproduced record. Zimmerman v. Kegel, Memorandum Decision, No. 51 MDA 2021 (Pa. Super. March 25, 2022).

 

Starting on page 933 of the Domestic Relations Lawsource, replace the existing Pa.R.Civ.P. 1920.42 found in your book with the following:

Rule 1920.42. Obtaining Divorce Decrees under Section 3301(c) or Section 3301(d) of the Divorce Code. Affidavits and Counter-Affidavits. Requirements of the Affidavit of Consent. Ancillary Claims. Orders Approving Grounds for Divorce. Notice of Intention to File the Praecipe to Transmit Record. Praecipe to Transmit Record.

 (a)  Obtaining a divorce decree under Section 3301(c)(1) of the Divorce Code.

   (1)  If a party has filed a complaint requesting a divorce on the ground of irretrievable breakdown, the court shall enter a decree in divorce after:

     (i)   proof of service of the complaint has been filed;

     (ii)   the parties have signed Affidavits of Consent 90 days or more after service of the complaint and have filed the affidavits within 30 days of signing, which may only be withdrawn by an order of court;

     (iii)   the ancillary claims under Pa.R.C.P. Nos. 1920.31 and 1920.33 have been withdrawn by the party raising the claims, have been resolved by agreement of the parties or order of court, have not been raised in the pleadings, or in the case of a bifurcated divorce, the court has retained jurisdiction of the ancillary claims;

     (iv)   the parties have signed and filed Waivers of Notice of Intention to File the Praecipe to Transmit Record or, alternatively, the party requesting the divorce decree has served on the other party a Notice of Intention to File the Praecipe to Transmit Record, which included a blank Counter-Affidavit under Section 3301(c)(1) and a copy of the proposed Praecipe to Transmit Record that indicated the date and manner of service of the Notice of Intention to File the Praecipe to Transmit Record; and

     (v)   the party requesting the divorce decree has completed and filed a Praecipe to Transmit Record. If the parties have not waived the Notice of Intention to File the Praecipe to Transmit Record, the moving party shall wait a minimum of 20 days after service of the Notice of Intention to File the Praecipe to Transmit Record before filing the Praecipe to Transmit Record.

 Note:

   See Pa.R.C.P. No. 1920.72(b) for the Affidavit of Consent.

   See Pa.R.C.P. No. 1920.73(a) for the Notice of Intention to File the Praecipe to Transmit Record.

   See Pa.R.C.P. No. 1920.72(e)(1) for the Counter-Affidavit under Section 3301(c)(1) of the Divorce Code.

   See Pa.R.C.P. No. 1920.73(b) for the Waiver of Notice of Intention to File the Praecipe to Transmit Record.

   See Pa.R.C.P. No. 1920.73(c) for the Praecipe to Transmit Record.

   (2)  To the extent that grounds for divorce have been established under Section 3301(c)(1) of the Divorce Code as outlined in subdivision (a)(1)(ii) and the parties have been unable to resolve the ancillary claims, the court shall enter an order approving grounds for divorce after:

     (i)   the parties have signed and filed Waivers of Notice of Intention to File the Praecipe to Transmit Record or, alternatively, the party requesting the order approving grounds has served on the other party a Notice of Intention to File the Praecipe to Transmit Record, which included a blank Counter-Affidavit under Section 3301(c)(1) and a copy of the proposed Praecipe to Transmit Record that indicated the date and manner of service of the Notice of Intention to File the Praecipe to Transmit Record; and

     (ii)   the party requesting the order approving grounds has completed and filed a Praecipe to Transmit Record requesting the court enter an order approving grounds for divorce. If the parties have not waived the Notice of Intention to File the Praecipe to Transmit Record, the moving party shall wait a minimum of 20 days after service of the Notice of Intention to File the Praecipe to Transmit Record before filing the Praecipe to Transmit Record. If the court enters an order approving grounds for divorce, entry of the divorce decree shall be deferred until the ancillary claims have been resolved.

 Note:

   See Pa.R.C.P. No. 1920.73(a) for the Notice of Intention to File the Praecipe to Transmit Record.

   See Pa.R.C.P. No. 1920.73(b) for the Waiver of Notice of Intention to File the Praecipe to Transmit Record.

   See Pa.R.C.P. No. 1920.73(c) for the Praecipe to Transmit Record.

   (3)  After the court enters an order approving grounds for divorce, a party may request, consistent with the judicial district’s local rules and procedures, that the court either hears the ancillary claims or appoints a hearing officer to hear the ancillary claims as outlined in Pa.R.C.P. No. 1920.51.

   Official Note

   See Pa.R.C.P. No. 1920.74 for the Motion for Appointment of Hearing Officer.

   (4)  If the parties resolve the ancillary claims by agreement after the court approves the grounds for the divorce but before the court enters an order disposing of the ancillary claims, the parties shall file a Praecipe to Transmit Record requesting the court enter the appropriate divorce decree. To the extent the agreement does not address all of the parties’ claims raised in the pleadings, the party raising the outstanding claims shall withdraw the claims before the court enters a divorce decree.

 (b)  Obtaining a divorce decree under Section 3301(c)(2) of the Divorce Code.

   (1)  If a party has filed a complaint requesting a divorce on the ground of irretrievable breakdown and a party has been convicted of a personal injury crime against his or her spouse, the court shall enter a decree in divorce after:

     (i)   proof of service of the complaint has been filed;

     (ii)   the party who is the victim of the personal injury crime:

       (A)   has signed and filed an Affidavit of Consent consistent with subdivision (a)(1)(ii); and

       (B)   has signed and filed an Affidavit to Establish Presumption of Consent under Section 3301(c)(2) of the Divorce Code alleging his or her status as a victim of a personal injury crime and that his or her spouse has been convicted of that crime;

     (iii)   the filed affidavits and a blank Counter-Affidavit under Section 3301(c)(2) of the Divorce Code have been served on the other party consistent with Pa.R.C.P. No. 1930.4, and the other party has admitted or failed to deny the averments in the Affidavit to Establish Presumption of Consent under Section 3301(c)(2) of the Divorce Code;

       (A)   If a party files a Counter-Affidavit under Section 3301(c)(2) of the Divorce Code denying an averment in the Affidavit to Establish Presumption of Consent under Section 3301(c)(2) of the Divorce Code, either party may present a motion requesting the court resolve the issue.

       (B)   After presentation of the motion in subdivision (A), the court may hear the testimony or, consistent with Pa.R.C.P. No. 1920.51(a)(1)(ii)(D), appoint a hearing officer to hear the testimony and to issue a report and recommendation.

 Note: This subdivision requires service of the counter-affidavit on the non-moving party consistent with original process since the averments in the moving party’s Affidavit to Establish Presumption of Consent under Section 3301(c)(2) of the Divorce Code are deemed admitted unless denied. See Pa.R.C.P. No. 1930.4 for service of original process and Pa.R.C.P. No. 1920.14(b) regarding failure to deny averments in the affidavit.

     (iv)   the ancillary claims under Pa.R.C.P. Nos. 1920.31 and 1920.33 have been withdrawn by the party raising the claims, have been resolved by agreement of the parties or order of court, have not been raised in the pleadings, or in the case of a bifurcated divorce, the court has retained jurisdiction of the ancillary claims;

     (v)   a minimum of 20 days from the date of service of the affidavits and blank Counter-Affidavit under Section 3301(c)(2) as set forth in (b)(1)(iii), the party requesting the divorce decree has served on the other party a Notice of Intention to File the Praecipe to Transmit Record, which included a copy of the proposed Praecipe to Transmit Record that indicated the date and manner of service of the Notice of Intention to File the Praecipe to Transmit Record, except that service of such Notice of Intention is not required if:

       (A)   the parties have signed and filed Waivers of Notice of Intention to File the Praecipe to Transmit Record; or

       (B)   the court finds that an attorney has not entered an appearance on the defendant’s behalf and that the defendant cannot be located after a diligent search; and

     (vi)   the party requesting the divorce decree has completed and filed a Praecipe to Transmit Record. If the parties have not waived the Notice of Intention to File the Praecipe to Transmit Record, the moving party shall wait a minimum of 20 days after service of the Notice of Intention to File the Praecipe to Transmit Record before filing the Praecipe to Transmit Record.

  Note:

   See Pa.R.C.P. No. 1920.72(b) for the Affidavit of Consent.

   See Pa.R.C.P. No. 1920.72(c) for the Affidavit to Establish Presumption of Consent under Section 3301(c)(2) of the Divorce Code.

   See Pa.R.C.P. No. 1920.72(e)(2) for the Counter-Affidavit under Section 3301(c)(2) of the Divorce Code.

   See Pa.R.C.P. No. 1920.73(a) for the Notice of Intention to File the Praecipe to Transmit Record.

   See Pa.R.C.P. No. 1920.73(b) for the Waiver of Notice of Intention to File the Praecipe to Transmit Record.

   See Pa.R.C.P. No. 1920.73(c) for the Praecipe to Transmit Record.

   (2)  To the extent that grounds for divorce have been established under Section 3301(c)(2) of the Divorce Code as outlined in subdivision (b)(1)(ii)- (iii) and the parties have been unable to resolve the ancillary claims, the court shall enter an order approving grounds for divorce after:

     (i)   a minimum of 20 days from the date of service of the affidavits and blank Counter-Affidavit under Section 3301(c)(2) of the Divorce Code as set forth in (b)(1)(iii), the party requesting the order approving grounds has served on the other party a Notice of Intention to File the Praecipe to Transmit Record, which included a copy of the proposed Praecipe to Transmit Record that indicated the date and manner of service of the Notice of Intention to File the Praecipe to Transmit Record, except that service of such Notice of Intention is not required if:

       (A)   the parties have signed and filed Waivers of Notice of Intention to File the Praecipe to Transmit Record; or

       (B)   the court finds that an attorney has not entered an appearance on the defendant’s behalf and that the defendant cannot be located after a diligent search; and

     (ii)   the party requesting the order approving grounds has completed and filed a Praecipe to Transmit Record requesting the court enter an order approving grounds for divorce. If the parties have not waived the Notice of Intention to File the Praecipe to Transmit Record, the moving party shall wait a minimum of 20 days after service of the Notice of Intention to File the Praecipe to Transmit Record before filing the Praecipe to Transmit Record. If the court enters an order approving grounds for divorce, entry of the divorce decree shall be deferred until the ancillary claims have been resolved.

 Note:

   See Pa.R.C.P. No. 1920.73(a) for the Notice of Intention to File the Praecipe to Transmit Record.

   See Pa.R.C.P. No. 1920.73(b) for the Waiver of Notice of Intention to File the Praecipe to Transmit Record.

   See Pa.R.C.P. No. 1920.73(c) for the Praecipe to Transmit Record.

   (3)  After the court enters an order approving grounds for divorce, a party may request, consistent with the judicial district’s local rules and procedures, that the court either hears the ancillary claims or appoints a hearing officer to hear the ancillary claims as outlined in Pa.R.C.P. No. 1920.51.

 Note:

   See Pa.R.C.P. No. 1920.74 for the Motion for Appointment of Hearing Officer.

   (4)  If the parties resolve the ancillary claims by agreement after the court approves the grounds for the divorce but before the court enters an order disposing of the ancillary claims, the parties shall file a Praecipe to Transmit Record requesting the court enter the appropriate divorce decree. To the extent the agreement does not address all of the parties’ claims raised in the pleadings, the party raising the outstanding claims shall withdraw the claims before the court enters a divorce decree.

 (c)  Obtaining a divorce decree under Section 3301(d) of the Divorce Code.

   (1)  If a party has filed a complaint requesting a divorce on the ground of irretrievable breakdown and the requisite separation period has elapsed, the court shall enter a decree in divorce after:

     (i)   proof of service of the complaint has been filed;

     (ii)   a party has signed and filed an Affidavit under Section 3301(d) of the Divorce Code averring that the marriage is irretrievably broken and that the parties have been separate and apart for the required separation period;

     (iii)   the filed affidavit and a blank Counter-Affidavit under Section 3301(d) of the Divorce Code have been served on the other party consistent with Pa.R.C.P. No. 1930.4, and the other party has admitted or failed to deny the averments in the Affidavit under Section 3301(d) of the Divorce Code;

       (A)   If a party files a Counter-Affidavit under Section 3301(d) of the Divorce Code denying an averment in the Affidavit under Section 3301(d) of the Divorce Code, including the date of separation, either party may present a motion requesting the court resolve the issue.

       (B)   After presentation of the motion in subdivision (A), the court may hear the testimony or, consistent with Pa.R.C.P. No. 1920.51(a)(1)(ii)(D), appoint a hearing officer to hear the testimony and to issue a report and recommendation.

 Note: This subdivision requires service of the counter-affidavit on the non-moving party consistent with original process since the averments in the moving party’s Affidavit under §  3301(d) of the Divorce Code are deemed admitted unless denied. See Pa.R.C.P. No. 1930.4 for service of original process and Pa.R.C.P. No. 1920.14(b) regarding failure to deny averments in the affidavit.

     (iv)   the ancillary claims under Pa.R.C.P. Nos. 1920.31 and 1920.33 have been withdrawn by the party raising the claims, have been resolved by agreement of the parties or order of court, have not been raised in the pleadings, or in the case of a bifurcated divorce, the court has retained jurisdiction of the ancillary claims;

     (v)   a minimum of 20 days from the date of service of the affidavit and blank Counter-Affidavit under Section 3301(d) of the Divorce Code as set forth in (c)(1)(iii), the party requesting the divorce decree has served on the other party a Notice of Intention to File the Praecipe to Transmit Record, which included a copy of the proposed Praecipe to Transmit Record that indicated the date and manner of service of the Notice of Intention to File the Praecipe to Transmit Record, except that service of such Notice of Intention is not required if:

       (A)   the parties have signed and filed Waivers of Notice of Intention to File the Praecipe to Transmit Record; or

       (B)   the court finds that an attorney has not entered an appearance on the defendant’s behalf and that the defendant cannot be located after a diligent search; and

     (vi)   the party requesting the divorce decree has completed and filed a Praecipe to Transmit Record. If the parties have not waived the Notice of Intention to File the Praecipe to Transmit Record, the moving party shall wait a minimum of 20 days after service of the Notice of Intention to File the Praecipe to Transmit Record before filing the Praecipe to Transmit Record.

Note:

   See Pa.R.C.P. No. 1920.72(d) for the Affidavit under Section 3301(d) of the Divorce Code.

   See Pa.R.C.P. No. 1920.72(e)(3) for the Counter-Affidavit under Section 3301(d) of the Divorce Code.

   See Pa.R.C.P. No. 1920.73(a) for the Notice of Intention to File the Praecipe to Transmit Record.

   See Pa.R.C.P. No. 1920.73(b) for the Waiver of Notice of Intention to File the Praecipe to Transmit Record.

   See Pa.R.C.P. No. 1920.73(c) for the Praecipe to Transmit Record.

   (2)  To the extent that grounds for divorce have been established under Section 3301(d) of the Divorce Code as outlined in subdivision (c)(1)(ii)-(iii) and the parties have been unable to resolve the ancillary claims, the court shall enter an order approving grounds for divorce after:

     (i)   a minimum of 20 days from the date of service of the affidavit and blank Counter-Affidavit under Section 3301(d) of the Divorce Code as set forth in (c)(1)(iii), the party requesting the order approving grounds has served on the other party a Notice of Intention to File the Praecipe to Transmit Record, which included a copy of the proposed Praecipe to Transmit Record that indicated the date and manner of service of the Notice of Intention to File the Praecipe to Transmit Record, except that service of such Notice of Intention is not required if:

       (A)   the parties have signed and filed Waivers of Notice of Intention to File the Praecipe to Transmit Record; or

       (B)   the court finds that an attorney has not entered an appearance on the defendant’s behalf and that the defendant cannot be located after a diligent search; and

     (ii)   the party requesting the order approving grounds has completed and filed a Praecipe to Transmit Record requesting the court enter an order approving grounds for divorce. If the parties have not waived the Notice of Intention to File the Praecipe to Transmit Record, the moving party shall wait a minimum of 20 days after service of the Notice of Intention to File the Praecipe to Transmit Record before filing the Praecipe to Transmit Record. If the court enters an order approving grounds for divorce, entry of the divorce decree shall be deferred until the ancillary claims have been resolved.

 Note:

   See Pa.R.C.P. No. 1920.73(a) for the Notice of Intention to File the Praecipe to Transmit Record.

   See Pa.R.C.P. No. 1920.73(b) for the Waiver of Notice of Intention to File the Praecipe to Transmit Record.

   See Pa.R.C.P. No. 1920.73(c) for the Praecipe to Transmit Record.

   (3)  After the court enters an order approving grounds for divorce, a party may request, consistent with the judicial district’s local rules and procedures, that the court either hears the ancillary claims or appoints a hearing officer to hear the ancillary claims as outlined in Pa.R.C.P. No. 1920.51.

 Note:

   See Pa.R.C.P. No. 1920.74 for the Motion for Appointment of Hearing Officer.

   (4)  If the parties resolve the ancillary claims by agreement after the court approves the grounds for the divorce but before the court enters an order disposing of the ancillary claims, the parties shall file a Praecipe to Transmit Record requesting the court enter the appropriate divorce decree. To the extent the agreement does not address all of the parties’ claims raised in the pleadings, the party raising the outstanding claims shall withdraw the claims before the court enters a divorce decree.

 

Adopted Nov. 7, 1988, effective Jan. 1, 1989. Amended May 17, 1991, effective July 1, 1991; Sept. 11, 1995, effective Jan. 1, 1996; April 10, 1997, effective July 1, 1997; March 2, 2000, imd. effective; May 6, 2015, effective July 1, 2015; June 3 2019, effective Oct. 1, 2019; October 19, 2021, effective January 1, 2022.

Explanatory Comment—1994

   Rule 1920.42 was revised in 1988 to add new subdivision (c) which imposes a requirement that the plaintiff notify the defendant or defendant›s attorney, if represented, of the intention to request entry of a divorce decree in an action under Section 3301(d)(1)(i) of the Divorce Code. In such an action the defendant has not actively participated in the proceedings and may be unaware that the court is about to enter a decree which will cut off certain economic rights unless a claim is promptly asserted. The requirement of notice is not extended to actions in which the defendant has actively participated by filing an affidavit of consent under Section 3301(c) of the Divorce Code or by contesting the plaintiff’s affidavit under Section 3301(d)(1)(ii).

   In addition, subparagraph (2) of subsection (c) requires that an unrepresented defendant also be served with a form counteraffidavit contained in Rule 1920.72(d). The defendant can use this form to deny the allegations contained in the plaintiff’s affidavit or to claim economic relief.

Explanatory Comment—1995

   The rule is amended to require the same notice prior to entry of the decree in a § 3301(c) divorce as was previously required in a proceeding under § 3301(d). This notice is already required by local rule in many counties, and is adopted in a general rule to further standardize practice.

   The requirement in new subdivision (c) that a party obtain leave of court before withdrawing an affidavit of consent is included to ensure orderly process, including notice to the other party and the court. The committee notes that the law is unsettled as to whether a court has the authority to refuse leave to withdraw an affidavit of consent.

Explanatory Comment—2019

   On April 21, 2016, Act 24 of 2016 (Act of Apr. 21, 2016, P.L. 166, No. 24) amended the Divorce Code by adding 23 Pa.C.S. § 3301(c)(2). Section 3301(c)(2) creates a presumption of consent to a divorce if a party is the victim of a personal injury crime committed by his or her spouse, as outlined in 23 Pa.C.S. § 3103. The Act amended other correlative statutes in the Divorce Code, as well. To effectively incorporate procedures for the newly enacted Section 3301(c)(2) into the Rules of Civil Procedure, Pa.R.C.P. No. 1920.42 was rescinded and replaced.

   In implementing Section 3301(c)(2), the rule utilizes an affidavit/counter-affidavit procedure similar to a Section 3301(d) divorce, which served as a template for the new procedure. The process for establishing the presumption of consent in Section 3301(c)(2) requires the party to aver in an affidavit that he or she had been the victim of a personal injury crime and that his or her spouse had been convicted of that personal injury crime. In response, the allegedly convicted spouse may oppose the establishment of the presumption by completing and filing a counter-affidavit. If the allegedly convicted spouse opposes the establishment of the presumption, the court may either schedule a hearing on the establishment of the presumption or appoint a master to do so. As part of the revised divorce procedures, amended Pa.R.C.P. No. 1920.51(a)(1) permits the appointment of a master for a determination of the presumption under Section 3301(c)(2). To effectuate the new procedures for Section 3301(c)(2) divorces, several additional forms, including an Affidavit to Establish Presumption of Consent and a Counter-Affidavit under Section 3301(c)(2), have been added to the rules. See Pa.R.C.P. No. 1920.72(c) and (e)(2).

   In addition to the changes to the rule related to 23 Pa.C.S. § 3301(c)(2), the rule has been further revised to provide a uniform practice across the Commonwealth for establishing a definitive point when the parties can move the court for resolution of any ancillary claims. As the court cannot resolve the ancillary claims until grounds for divorce have been established, Pa.R.C.P. No. 1920.42 includes procedures for obtaining approval of grounds for divorce in cases in which the parties have unresolved ancillary claims. This process requires that the parties obtain a court order approving grounds for divorce before seeking the appointment of a divorce master or requesting the court hear the ancillary claims raised in the pleadings. Forms have been correlatively amended or retitled to reflect this new procedure. The Waiver of Notice of Intention has been moved from Pa.R.C.P. No. 1920.72 to Pa.R.C.P. No. 1920.73.

   As a result of these changes, Pa.R.C.P. No. 1920.42 specifically outlines the process for obtaining a decree for Section 3301(c)(1), Section 3301(c)(2), and Section 3301(d) divorces. Although the rule’s length has expanded extensively, the detailed procedure alleviates confusion on when and how to obtain a divorce decree and further assists unrepresented parties to maneuver through a complicated procedure.

Annotation

   In In Re: Estate of Easterday, the Pennsylvania Supreme Court affirmed the Superior Court’s ruling that because the local prothonotary rejected the filing of decedent’s Affidavit of Consent due to a lack of compliance with Rule 1920.42(b)(2)’s 30-day validity requirement, grounds for divorce had not been established in accordance with section 3323(g)(2) of the Divorce Code at the time of decedent’s death. Because the decedent’s Affidavit of Consent was not filed, 20 Pa.C.S. § 6111.2 of the PEF Code did not invalidate Easterday’s designation as the beneficiary of decedent’s life insurance policy. The majority noted that it had exercised its rulemaking authority to establish the procedures by which a married couple could obtain a divorce by consent. Included in these rules was Rule 1920.42, which authorizes the trial court to enter a divorce decree pursuant to sections 3301(c) and (d)(1) of the Divorce Code without need for further proceedings when certain filing and notice requirements have been met by the parties. Pa. R.Civ.P. 1920.42 (b)(2) provides that the affidavit referenced in section 3301(c) must have been executed within 30 days or more after both filing and service of the complaint.

   Because the local prothonotary rejected the filing of decedent’s Affidavit of Consent due to lack of compliance with Rule 1920.42(b)(2)’s 30-day validity requirements, grounds for divorce had not been established in accordance with section 3323(g)(2) of the Divorce Code at the time of decedent’s death. Because decedent’s Affidavit of Consent was not filed, section 6111.2 of the PEF Code did not invalidate Easterday’s designation as the beneficiary of decedent’s life insurance policy.

   The majority found it significant that when enacting § 3323(g)(2), the General Assembly offered no indication that it intended to eliminate or alter Rule 1920.42(b)(2)’s 30-day validity requirement with respect to application of § 3323(d.1)’s instructions when a spouse dies during the course of divorce proceedings. As such, the majority ruled, grounds for divorce were not established prior to decedent’s death and thus, section 6111.2 of the PEF Code did not operate to revoke Easterday’s designation as the beneficiary of decedent’s life insurance policy. In Re: Estate of Easterday,  209 A.3d 331 (Pa. 2019).