Q: Both parties are consenting to divorce but have been separated for 10 years. Does the 90 day waiting period still count?
My fiance has been separated from his wife for over 13 years. She is consenting to the divorce. We are just wondering if we still needed to the 90 days after we filed the affidavit of service or can we go ahead and proceed
A:
This is a great question. Unfortunately the rules of procedure in divorce cases can be confusing.
The Pennsylvania Divorce Code requires different waiting periods depending on the parties' date of separation. Once the parties have been separated for over one or two years (depending on their date of separation the waiting period varies) then either spouse can file an affidavit with the court stating the date of separation which then must be served on the other party in the same manner as the divorce complaint. If the other party does not contest that date of separation or voluntarily waives any further notice prior to finalization of the case then If you did not do this yet then you would need to go back and do it before you could try to proceed under section 3301(d) of the Code.
Otherwise, if you are willing to wait the extra time, you can wait until the 90 day waiting period has expired and move forward under section 3301(c) of the Code.
My best advice here would be to hire an experienced divorce attorney to make sure that the case is finalized as quickly and with as few headaches as possible.
-Patrick J. Cooper, Esquire
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