April 18, 2017
As family law attorneys we often take for granted that the paperwork required by the Court in order to begin a divorce action is simply administrative “filler.” We often tell clients that the counseling notice we are required to file with a divorce complaint is a formality and is never utilized. But what if it were, and it were being used by an abusive spouse in an attempt to maintain contact with and continue to abuse the other party?
The consent section of the Divorce Code, 3301 (c), states that 90 days after the divorce is served on the defendant, both parties can sign consents to move the case forward toward its conclusion. In a non consensual divorce, which is outlined in section 3301(d) the case can proceed once the parties have lived separately for one year, regardless of the defendant agreeing.
Counseling in divorce was mandated, without allowing exceptions, under 23 Pa. C.S.A. section 3302. For a consent divorce, that if one of the parties requested counseling in the 90 days leading up to signing consents, the Court had to mandate up to three counseling sessions.
The court also had to mandate counseling if, as stated in section 3301(d)(2), after a hearing, the Court determines there is a “reasonable prospect” of reconciliation. In those cases the parties shall be required to attend up to a maximum of three counseling sessions in a 90 day time period. This occurs when either of the parties requests it, or the Court may require counseling where the parties have at least one child under 16 years of age.
That meant that in a divorce someone could be forced into counseling whether they want it or not. For a person in a domestic abuse situation that is a nightmare. Imagine you finally get the courage to leave an abusive relationship, you file for divorce from a person you fear, and then you are forced to sit in three counseling sessions with your abuser. Often times abusers use any excuse to maintain contact with their victim and forcing series of counseling sessions is a perfect example of this behavior. Luckily the Pennsylvania Legislature and Governor Wolf address this exact issue last year.
On April 21, 2016 Governor Wolf signed into law an amendment to section 3302 that provides an exception to the counseling requirement: Notwithstanding any other provision of the law, in no case may the court require counseling over the objection of a party that has a protection from abuse order, enforceable under Chapter 61 (relating to protection from abuse) against the other party, or where that party was convicted or has entered into an Accelerated Rehabilitative Disposition program as a result of conduct for which the other party was a victim.
As a result of this amendment abusers can no longer hold their spouse hostage and use the court system to delay a divorce and have additional unwanted contact. This is another important step toward removing the stigma of domestic violence, keeping victims safe, and allowing them to move forward with their lives without fear.
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The information above is general: we recommend that you consult an attorney regarding your specific circumstances. The content of this information is not meant to be considered as legal advice or a substitute for legal representation.