Irretrievable Breakdown

Divorce in Bucks County based on "irretrievable breakdown"  

We have previously discussed Bucks County divorce based on fault grounds.  Now, we turn to the more typical no-fault divorce of irretrievable breakdown.  The law states, under 3301(d), 

d)  Irretrievable breakdown.--

(1)  The court may grant a divorce where a complaint has been filed alleging that the marriage is irretrievably broken and an affidavit has been filed alleging that the parties have lived separate and apart for a period of at least two years and that the marriage is irretrievably broken and the defendant either:

(i)  Does not deny the allegations set forth in the affidavit.

(ii)  Denies one or more of the allegations set forth in the affidavit but, after notice and hearing, the court determines that the parties have lived separate and apart for a period of at least two years and that the marriage is irretrievably broken.

(2)  If a hearing has been held pursuant to paragraph (1)(ii) and the court determines that there is a reasonable prospect of reconciliation, then the court shall continue the matter for a period not less than 90 days nor more than 120 days unless the parties agree to a period in excess of 120 days. During this period, the court shall require counseling as provided in section 3302 (relating to counseling). If the parties have not reconciled at the expiration of the time period and one party states under oath that the marriage is irretrievably broken, the court shall determine whether the marriage is irretrievably broken. If the court determines that the marriage is irretrievably broken, the court shall grant the divorce. Otherwise, the court shall deny the divorce.  

Discussion of the irretrievable breakdown in Bucks County


The trickiest part of a 3301(d) is the definition of "separate and apart", which your divorce attorneys in Bucks County should advise you about.  As part of the Divorce Code Amendments of 2005, the definition of "separate and apart" was amended by adding the following sentence:  "In the event a complaint in divorce is filed and served, it shall be presumed that the parties commenced to live separate and apart not later than the date that the complaint was served."  This amendment establishes a rebuttable presumption designed to address a dispute over the date of separation, particularly relevant in cases where the parties reside under the same roof, which is very common post-2008 and the recession.  

Separate and apart is defined in Section 3301(3) as "[c]omplete cessation of cohabitation, whether living in the same residence or not."  Although not defined in the Divorce Code, cohabitation has been interpreted to mean the mutual assumption of those rights and duties attendant to the relationship of husband and wife  Cohabitation may be shown by evidence of financial, social and sexual interdependence, by sharing of the same residence, and by other means.  No one factor is conclusive.  The gravaman of the phrase "separate and apart" is the existence of separate lives, not separate roofs.  The fact that parties engage in sexual relations does not - by itself - defeat a claim for unilateral divorce predicated on separation under Section 3301(d), especially where there is no other evidence indicating that the parties resumed other aspects of the marital relationship.