Getting Divorced Without an Attorney Part 2
Getting Divorced Without an Attorney Part 2
Getting Divorced Without an Attorney!
Pro Se/Self Represented Litigation
This divorce essay is part two of my getting-divorced-on-your-own educational opinion overview using a Pennsylvania example. This essay picks up where Part One left off.
The beginning requirements in a divorce case are filling out the divorce complaint, filing the complaint successfully, and then serving an official copy on the other spouse. These vital items were covered in Part One of this series.
Proving the Service of the Complaint
After successfully serving the other party, a Plaintiff should file proof of service to her divorce file in the Prothonotary. If you (hypothetical you) used a professional process server of any type, this proof will be an affidavit of service prepared by that person. A professional process server makes it easy for you by properly serving and giving you the proof you need to file. One can Google process server and find some in any area. In Pennsylvania, you can also Google state constables in your area as they are professional process servers. Some county sheriffs will also serve people for a fee and are your best approach if serving someone in the county prison.
If you served the complaint via registered mail, you should prepare your own affidavit of service explaining when and how you mailed it, and when the person signed for it, refer to the number on the registered mail, affirm that the signature on the card is the Defendant's, and attach the green registered receipt card (you can carefully tape it to the back of the affidavit, tape all four sides). You should double check the local rules, read through them online or at the law library, for any additional requirements. Some jurisdictions explicitly say you must verify the signature of the Defendant where he signed for the service. After you have your proof all prepared, you should file it. It is important to do this right away, simply because when people wait, they often misplace their proof of service. Legally, one can file the proof of service when you file all the other documents near the end of the divorce case, but one runs the risk of having misplaced the proof of service. Without proper service and proof of service, a Court does not have jurisdiction, and the divorce order cannot be signed. Service is simple, but service can be the single biggest headache for Plaintiffs when they do not do it properly.
Affidavits of Consent
Next, in an uncontested divorce (see Part One for an explanation of uncontested divorce), comes the affidavit of consents. In Pennsylvania, this is a short, simple form printed at Rule 1920.72 of the Rules of Civil Procedure. Or, one can find the form at certain helpful county court websites such as Lancaster County (remember to change county name to applicable county and put proper case number on the form).
The affidavit of consent has to be signed AND DATED ninety days after the date the complaint was filed and served! The service would be the date to count from. (One Pennsylvania Superior Court panel recently twisted sideways to avoid enforcing this requirement in one case, but it is crystal clear in the all-important divorce rule, so do it.) It is important to watch the timing rules when getting divorced. This Pennsylvania requirement is the second most common mistake people make after service errors. And then, a person has to FILE the affidavit of consent within thirty days of the date it is signed. Waiting too long to file the affidavit of consent is another common mistake. Yes, two people may fully agree on getting divorced, but the Plaintiff has to take the rules seriously else the entire divorce can be delayed which causes quite a bit of stress. (Observation: Attorneys often just have their clients sign the affidavits of consent early on and leave the date line blank, and then fill in the date later to give the appearance of complying with the rules.)
Example: Jane serves John with a divorce complaint and then mails the required forms to John, asking him to sign them. John complies but signs and dates the affidavit of consent before the ninety days have run. He returns everything to Jane, but she misses this error and files everything to get the divorce signed. Sadly, the divorce is held up extra months because of this one mistake.
The Plaintiff may want to provide the Defendant with a SASE (self-addressed stamped envelope) to make things easier for him and make sure he gets the affidavit of consent back to the Plaintiff in time, so it can be filed within the thirty day deadline. Or, meet at a Starbucks, treat the Defendant to a coffee to get cooperation, and sign the forms together that way the Plaintiff can make certain everything is done correctly and instantly has all the forms.
Affidavit of Non-Military Service
A Plaintiff fills out and file an affidavit of non-military service stating that the Defendant is not in the U.S. Military. A Plaintiff can use the signature line and verification sentence from the affidavit of consent form in the rules. Simply verify that the Defendant is not, to the best of Plaintiff's knowledge, in any branch of the United States Military. Adding a few facts such as the age and employment of the Defendant is helpful if the Plaintiff has that information. A federal law created this requirement when a Defendant does not "appear" in an action. State judges differ as to their interpretation of what "appear" means. For instance, in Pennsylvania, where uncontested divorces are done through paperwork alone and where people never physically "appear" before a judge, some judges consider a Defendant signing pleadings such as an acceptance of service and an affidavit of consent to qualify as "appearing" and some judges do not. Therefore, it is safest to always fill out an affidavit of non-military service. You can also call the local Prothonotary or Civil Clerk and ask them if your county has its own non-military affidavit form. A checklist is a great idea for divorce, and, when in doubt, call and call again even if the first government employee who answers the phone is not helpful. Confirming that there is a local form available so that you can pick it up is not legal advice despite some clerks’ insistence that it is. Be patient. Check local Court websites. Check local rules posted on line. Check the website for the family court administrator. Phrase your questions carefully.
If your spouse used to be in the military and you are not sure if he/she still is, the branches of the service have different phone numbers which you can Google and call with name and social security number to find out if a person is still in the military. If they verify for you that your spouse is no longer in the service; then write down who you spoke to (at least title and office) and when and put this information in your non-military affidavit.
If your spouse is in the military, and he is agreeing to a divorce and does not wish to have an attorney appointed for him, then he should enter his appearance as a self-represented litigant (or Pro Se party) with an official entry of appearance form from the Prothonotary. Alternatively, one can create his own simple entry of appear by just putting the case caption on the top on a single sheet of paper, titling it “entry of appearance” underlined, and simply state that he is entering his Pro Se appearance, representing himself in this divorce matter, is in the military, and does not want an attorney appointed. That would hopefully do the trick any judge.
Waiver of Notice Of Intention to Request Entry of a Divorce Decree
When a Plaintiff has the Defendant sign the affidavit of consent, he or she should have his or her spouse sign the waiver of notice at the same time. Again, this form can be found in the Pennsylvania divorce rules. It’s short, simple, and easy to type. Pennsylvania Rules of Civil Procedure 1920.72
Then, when the Plaintiff files the affidavits of consent, the Plaintiff should file the waivers along with them. Yes, for some reason, Pennsylvania requires the Plaintiff to sign, date and file a waiver of notice as well though it makes little sense for the person who is requesting the divorce decree to have to waive notice. But, when jumping through legal hoops, it’s best to “just do it.” As a general rule, when in doubt if you have to file something in a divorce, it’s better to file too much than too little.
Notice of Intention to Request Entry of a 3301(c) Divorce Decree
If for some reason, a person’s spouse signs the affidavit of consent but does not sign a waiver of notice, then a Plaintiff needs to send the Defendant a Notice of Intention to Request Entry of 3301(c) Divorce decree. In Pennsylvania, you also have to send an appropriate blank counter-affidavit along with the notice (the form is, again, provided in the rules). Then, the Plaintiff can file a copy of Notice of Intention and a copy of the counter-affidavit that she sent along with her Praecipe to Transmit record. You do have to send the notice to Defendant at least twenty days before you file the Praecipe to Transmit record. In the notice, you fill in that you intend to file on a certain day, at least twenty days out. Now, most people are, understandably, in a hurry to get a divorce done. But, it is best to leave an extra few days with all the deadlines. For instance, give someone twenty-four days notice instead of twenty, and then file the praecipe to transmit after thirty days. This leaves the Court no doubt that the Defendant has had ample time to object if he wants to, and that the divorce is not being rushed through with fair notice at each stage. This point is even more important in a 3301(d) divorce where the person has not signed a consent to the divorce.
I will discuss 3301(d) divorces near the end of this essay.
Praecipe to Transmit Record
Okay, you (the hypothetical divorcer) have successfully filed and served a divorce complaint, filed proof of service, signed and filed the affidavits of consent, the waivers of notice (or, the notice of intention to file), and a non-military affidavit. Now, it’s time to get your divorce in front of the judge and signed. Time to close the deal.
You must carefully fill out the praecipe to transmit form from the rules, Pa.R.C.P. 1920.73. Do not skip any of the information. Too many people get sloppy here, and a judge having a bad day might reject the divorce for the inaccurate and/or incomplete Praecipe to Transmit. This document not only moves the divorce file to the judge, but it clearly and accurately summarizes all the required information.
As I’ve mentioned previously, local jurisdictions may add extra hoops to getting divorced. They do this for many reasons, but mainly, I believe, to help prop up the local attorneys by creating a barrier against non-local attorneys and self-litigant parties.
Anyway, use the internet to go to the local court's website (also try the family court, and the family court administrator for your county). Then, look for the rules of civil procedure and find a link to local rules. The local rules are supposed to be numbered in conjunction with the state rules in Pennsylvania, so the rules you need would be 1920, etc. Look for through the divorce section for any local requirements. To be safe, bring in multiple copies of the divorce decree along with the original for the judge to sign. Also, bring in envelopes addressed to the parties, pre-stamped, and with the county prothonotary as a return address. These are some of the more common requirements in jurisdictions that add local requirements. It does not hurt to file a "certification of addresses" as well where you simply certify at the end of the case that these are the current correct addresses for the two parties.
One easy way to see what the forms needed look like is to surf other divorce cases in your county. (If your county does not have its civil dockets with images online yet, one can usually do it on a computer at the courthouse. It is well worth the trouble to get a nice example.)
Valuable tip: Civil records are public! You can go to most courthouses and go to the Prothonotary or Civil Clerk and access a public computer where you type some common names into the computer until you find a person who has been divorced. Then, print the documents prepared by an expensive attorney as your guide! (Of course, it’s best to try to find a similar type of divorce as your own if possible as far as a 3301(c) or 3301(d) divorce goes.)
You can view civil dockets via the internet in many counties, so you can at least see what documents were filed in a divorce. Again, just type some common names into the county's search application to find a divorce file. As counties move toward electronic filing, hopefully more scanned images will be available so that you can see the documents from home. Right now, attorneys get special remote access in many counties which is not fair to the general public.
In Pennsylvania, if you want to get divorced and cannot get cooperation from the other spouse, then you can try a 3301(d) divorce. The key element is that the two spouses must have been separated for a full two years before the 3301(d) divorce can be granted. In the 3301(c), the other party signs a consent form. In the 3301(d) divorce, one side does all the work and the other spouse signs nothing. The key is that the other spouse does not actually contest the divorce because if he or she does, then you will need a hearing. The other spouse can contest whether the two parties separated two years previously or not. The other spouse could request marriage counseling although courts grant this request on a rare basis these days where the Plaintiff presents a good argument that counseling has no chance of a productive outcome. Or, more commonly, the other spouse may make economic claims, and then a full court equitable distribution process will be needed.
In any case, the basic 3301(d) process is very similar to the 3301(c) process. You file a complaint asking for a divorce without specifying which grounds you want the divorce granted upon, or you can state 3301(c) or 3301(d). Just use the form in the rules. Then, you properly serve the divorce. If it is not a consent divorce, using a professional process server is an even better idea to guarantee proof of service.
With a 3301(d) divorce, you also fill out, serve, and file a 3301(d) affidavit. This is a very short fort contained in the rules whereby you are swearing that the marriage has been broken for two years and is irretrievably broken. Also, you state you have been separated for at least two years. With the 3301(d) affidavit, you must serve on the Defendant (spouse) a blank 3301(d) counter-affidavit. This form is again in the Pennsylvania rules of civil procedure. The counter-affidavit makes it easy for the other party to declare he or she will contest the divorce if that is his or her intention. When people are unrepresented, it is absolutely required. Best practice would be to serve the complaint, affidavit and counter-affidavit all at once and file a single proof of service that lists all three.
Then, you wait for a month to serve (U.S. mail is fine) a notice of intention to request an entry of divorce decree. Then, wait another thirty days (rules require 20 but it's best to add a little time), and then file your praecipe to transmit with all the information (dates, mostly) filled in.
Divorces are full of emotion. It is important to keep cool and patient when getting divorced and work the problem of the bureaucracy.
Basic Requirement Reminder:
1) Complaint 2) Proof of Service 3) Affidavits of Consent 4) Waiver of Notice 5) Non-military affidavit 6) Praecipe to Transmit with divorce decree, copies, SASEs, etc.
(or, a 3301(d) divorce would include 3) 3301(d) affidavit with blank counter-affidavit and 4) a notice of intention instead of a consents and a waiver).