Can a 2009 divorce filing be used to establish the date of separation in a new 3301(d) action?:
I am inquiring on behalf of my fiancé regarding a contested divorce in Allegheny County. He has a prior divorce filing from 2009 (and another in 2023), but the defendant has consistently refused to sign.
He is now moving forward under Section 3301(d) (Irretrievable Breakdown with one-year separation). We are seeking representation to file a motion to cement the 2009 filing as the legal date of separation. We have documented proof of separate households, including the 2009 court record and lease agreements from 2020 to present. Additionally, the defendant has already signed a waiver of spousal support.
We want to know if local firms typically handle this specific litigation on a flat-fee basis and what the typical timeline looks like for such a motion.
Jeanné’s answer: All of the proof you mentioned, including proof of prior divorce filings, can certainly be entered as evidence at a hearing, but the separation date will still need to be determined by the court if there is no agreement. Your fiancé should retain an attorney to handle the entire case if it is a contested divorce. If the only issue is divorce (no economic claims), attorney fees will definitely be less than if economic claims need to be litigated. It is uncommon to retain an attorney to file only one motion to establish the separation date. In such a case, the attorney will need to file a limited entry of appearance to notify the court that the attorney's sole involvement in the case is to handle the one motion, not any other issues. However, if I was to be retained by your fiancé for the sole purpose of representation relating to the filing and resolution of a motion to determine the separation date, I would personally charge a flat fee to draft the motion, a separate flat fee to reply to any answer to the motion filed by the other side, a separate flat fee for any conferences scheduled by the court relating to the motion, a separate flat fee for any hearings scheduled by the court relating to the motion, and, and a separate flat fee for any briefs or memorandums of law requested by the court before it decides the motion. In my view, the contingencies associated with filing a motion make quoting a single flat fee to handle the whole process problematic, unless the fee is large enough to account for all possible contingencies.
Can my husband file for divorce if we are still sleeping at each other's houses for the last 2 year: My husband left in December of 2023. We were technically only separated three months until we started sleeping at each other's houses and being intimate . We have been doing this since then up until the present . Would they grant him a divorce under these circumstances if he filed for divorce. He also still gets mail at my house. Since the time he left until now we maybe spent less then a month apart.
Jeanné’s answer: Your husband can still file for a divorce. If he does file, you do not have to consent to entry of a divorce decree, which would prevent him from obtaining a divorce decree pursuant to section 3301(c) of the Divorce Code. In such a case, he would need to serve you with a 3301(d) affidavit alleging that you have been living separate and apart for at least a year. You could then file a counteraffidavit denying that you have been living separate and apart, and there would be a hearing to determine whether he can meet his burden to prove that you have lived separate and apart for a year. If he meets that burden, a divorce decree can be granted under section 3301(d) of the Divorce Code. You may also file a request for marriage counseling. However, if he truly wants a divorce, you would simply be delaying matters by arguing the separation date, although, because the separation date may affect a claim for equitable distribution, you should consult with an experienced divorce attorney before you start arguing for a different separation date than that alleged by your husband.
Can my husbands adult kids kick e out of our house if the house is in his name only: His adult kids are from his ex wife
Jeanné’s answer: If the adult children of your husband do not own the house, then they cannot evict you. Also, if the house was purchased during the marriage or if income earned during the marriage by either of you was used towards the purchase of the home, then you have a marital interest in the home. In the event of a divorce, you can seek that he buy out your marital interest if he desires to keep the home. You should consult with an experienced divorce attorney to discuss the specifics of your situation.