Alternative Pleading in a Divorce Action? Not So Fast!

When filing a divorce complaint, it appears that aserves to extend the time the opposing party
typical lawyer's standard pleading philosophy is tohas to pay alimony pendente lite without recourse
make as many claims as theoretically possible,to stop it. Second, it prolongs the time the parties
relying on the court or opposing counsel to takeare married, which can have any number of
the appropriate action to strike the weakestimplications. The courts have taken the position
claims; a strategy often referred to as "throw asthat the refusal to consent to one's own divorce
much mud against the wall and see what sticks!"action is an abuse of the divorce process and one
The Pennsylvania Rules of Civil Procedure (Pa.cannot receive the benefit of the divorce action
R.C.P. 1020 and 1021) appear to support such awithout taking reasonable steps to expeditiously
strategy by specifically allowing alternative pleadingconclude it.
as well as pleading contradictory claims. In fact,Although the courts have ruled that one cannot
the Supreme Court of Pennsylvania has explicitlyrefuse to file an Affidavit of Consent, can a court
ruled that "[t]hese rules reflect the generalforce a party to execute the affidavit? Thus far,
principle that plaintiffs should not be forced tothe courts have been reluctant to force the
elect a particular theory in pursuing a claim."execution of an Affidavit of Consent. The cases
Republic Intermodal Corporation and Sullivan Lines,deciding this issue to date have established the
Inc. v. Doris Leasing Company, Inc. and Unionpenalty for refusing to consent to one's own
National Bank of Pittsburgh, 473 Pa. 614 (1976).divorce to be the dismissal of the divorce action
When filing a divorce complaint, it appears thatin toto, which, by definition, simultaneously
most attorneys maintain the aforesaid strategydismisses the alimony pendente lite. It does not
by simultaneously making claims for a divorceyet appear that sanctions against the party
under Sections 3301(c), 3301(d), and sometimesrefusing to consent to his own divorce action are
3301(a) of the Pennsylvania Divorce Code, asamong the penalties to be assessed, but the
standard practice. For the benefit of those whocases do not proscribe such a result.
are not familiar with the Divorce Code, SectionA subset of cases involving a party refusing to
3301(c) permits a no-fault divorce after the filingconsent to his divorce is growing in the
of Affidavits of Consent by both parties andcircumstance where the party is receiving spousal
ninety (90) days have elapsed after the filing of asupport rather than alimony pendente lite. The
divorce action. Section 3301(d) allows for acrucial distinction between spousal support and
no-fault divorce to be unilaterally secured by onealimony pendente lite is that spousal support is not
spouse after two (2) years of separation. 3301(a)dependent upon the existence of a divorce action.
is a traditional and old-fashioned fault-basedSpousal support can be successfully requested
divorce claim.and received by a spouse absent a divorce action,
Although the Rules of Civil Procedure appear tobut is definitively concluded when the parties are
allow for alternative pleading, even in the contextdivorced. Therefore, dismissing the divorce action
of divorce, there are a growing number of casesas a penalty for refusing to file an Affidavit of
that appear to proscribe alternative pleading inConsent, does not resolve the prejudice of having
divorce in certain circumstances. One questionan artificially prolonged spousal support order in
which has arisen is: can a plaintiff in a divorceplace against the opposing party. In this instance,
action, filing under Section 3301(c) and 3301(d) andjudicial economy arguments are raised in the
or 3301(a) refuse to file an Affidavit of Consentcontext of the individual factual circumstances of
to consent to his own divorce action? It wouldeach case. The specific issue is whether dismissing
appear, under the above Rules and case law thatthe divorce claim has any positive effect on the
a plaintiff in a divorce action has the choice ofspousal support claim. If not, then dismissing the
proceeding under whichever claim he wishes.claim may not be a viable alternative to correct
However the courts have increasingly limited thisthe prejudice against the opposing party. It is in
right under certain circumstances.this situation that sanctions are most likely to be
Pennsylvania courts, in an increasing number ofassessed to remedy the clearly unjust situation.
cases, have ruled that refusing to allow a plaintiff'sIn the final analysis, when filing for a divorce, one
divorce action to progress through the quickesthas to be aware of the implications of the
route possible unfairly and inappropriatelyexistence of an order for spousal support or
prejudices the opposing party. Consequently, if aalimony pendente lite on the speed in which one
plaintiff files under Section 3301(c), the courtswould like divorce action to proceed. Relatedly, if
have increasingly taken the position that oneone files under Section 3301(c) of the Divorce
cannot refuse to file an Affidavit of ConsentCode, one must be prepared to file an Affidavit
under Section 3301(c). The prejudice to theof Consent, otherwise one should only proceed
opposing party is fairly obvious: first, the filing of aunder the other sections of the Divorce Code.
divorce action is often accompanied by the filingRelevant cases on this topic are: Skelly v. Skelly,
for (and granting of) alimony pendente lite.36 Pa.D.C.4th 189 (1997); Norris v. Norris, 10 Pa.
Alimony pendente lite is support for the opposingD.&C.4th 207 (1991); Mellot v. Mellot, 1 Pa.D.&C.4th
party which can only be received during the618 (1988); Burk v. Burk, 38 Pa.D.&C.3d 558
pendency of a divorce action. Therefore, taking(1986); Way v. Way, 35 Pa.D.&C.3d 653 (1985);
action to prolong one's own divorce action onlyRueckert v. Rueckert, 20 Pa.D.&C.3d 191 (1981).