PRIOR PRINTER'S NO. 94 PRINTER'S NO. 821
No. 95 Session of 2003
INTRODUCED BY GREENLEAF, LEMMOND, TARTAGLIONE AND THOMPSON,
JANUARY 29, 2003
SENATOR GREENLEAF, JUDICIARY, AS AMENDED, MAY 6, 2003
AN ACT
1 Amending Title 23 (Domestic Relations) of the Pennsylvania
2 Consolidated Statutes, amending and adding provisions <--
3 relating to divorce. FURTHER DEFINING "SEPARATE AND APART" <--
4 FOR PURPOSES OF DIVORCE; PROVIDING FOR PREMARITAL AGREEMENTS;
5 FURTHER PROVIDING FOR DECREE OF COURT IN ACTIONS FOR DIVORCE;
6 FURTHER DEFINING "MARITAL PROPERTY" FOR PURPOSES OF CERTAIN
7 PROPERTY RIGHTS; AND FURTHER PROVIDING FOR EQUITABLE DIVISION
8 OF MARITAL PROPERTY, FOR DISPOSITION OF PROPERTY TO DEFEAT
9 OBLIGATIONS AND FOR STATEMENT OF REASONS FOR DISTRIBUTION.
10 The General Assembly of the Commonwealth of Pennsylvania
11 hereby enacts as follows:
12 Section 1. The definition of "separate and apart" in section
13 3103 of Title 23 of the Pennsylvania Consolidated Statutes is
14 amended to read:
15 § 3103. Definitions.
16 The following words and phrases when used in this part shall
17 have the meanings given to them in this section unless the
18 context clearly indicates otherwise:
19 * * *
20 "Separate and apart." [Complete cessation] Cessation of [any
21 and all] cohabitation, whether living in the same residence or
1 not. In the event a complaint in divorce is filed and served, it
2 shall be presumed that the parties commenced to live separate
3 and apart not later than the date that the complaint was served.
4 * * *
5 Section 2. Title 23 is amended by adding a section to read:
6 § 3106. Premarital agreements.
7 (a) General rule.--The burden of proof to set aside a
8 premarital agreement shall be upon the party alleging the
9 agreement to be unenforceable. A premarital agreement shall not
10 be enforceable if the party seeking to set aside the agreement
11 proves, by clear and convincing evidence, that:
12 (1) the party did not execute the agreement voluntarily;
13 or
14 (2) the party, before execution of the agreement:
15 (i) was not provided a fair and reasonable
16 disclosure of the property or financial obligations of
17 the other party;
18 (ii) did not voluntarily and expressly waive, in
19 writing, any right to disclosure of the property or
20 financial obligations of the other party beyond the
21 disclosure provided; and
22 (iii) did not have an adequate knowledge of the
23 property or financial obligations of the other party.
24 (b) Void agreements.--A premarital agreement executed within
25 60 days prior to the marriage shall be void. A waiver of this
26 subsection shall be unenforceable.
27 (c) Definition.--As used in this section, the term
28 "premarital agreement" means an agreement regarding matters
29 within the jurisdiction of the court under this part between
30 prospective spouses made in contemplation of marriage and to be
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1 effective upon marriage.
2 Section 3. Section 3301(d) of Title 23 is amended to read: <--
3 § 3301. Grounds for divorce.
4 * * *
5 (d) Irretrievable breakdown.--
6 (1) The court may grant a divorce where a complaint has
7 been filed alleging that the marriage is irretrievably broken
8 and an affidavit has been filed alleging that the parties
9 have lived separate and apart for a period of at least [two
10 years] one year and that the marriage is irretrievably broken
11 and the defendant either:
12 (i) Does not deny the allegations set forth in the
13 affidavit.
14 (ii) Denies one or more of the allegations set forth
15 in the affidavit but, after notice and hearing, the court
16 determines that the parties have lived separate and apart
17 for a period of at least [two years] one year and that
18 the marriage is irretrievably broken.
19 (2) If a hearing has been held pursuant to paragraph
20 (1)(ii) and the court determines that there is a reasonable
21 prospect of reconciliation, then the court shall continue the
22 matter for a period not less than 90 days nor more than 120
23 days unless the parties agree to a period in excess of 120
24 days. During this period, the court shall require counseling
25 as provided in section 3302 (relating to counseling). If the
26 parties have not reconciled at the expiration of the time
27 period and one party states under oath that the marriage is
28 irretrievably broken, the court shall determine whether the
29 marriage is irretrievably broken. If the court determines
30 that the marriage is irretrievably broken, the court shall
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1 grant the divorce. Otherwise, the court shall deny the
2 divorce.
3 * * *
4 Section 4 3. Sections 3323(c) and (d), 3501(a) and 3502(a) <--
5 of Title 23 are amended and the sections are amended by adding
6 subsections to read:
7 § 3323. Decree of court.
8 * * *
9 [(c) Bifurcation.--In the event that the court is unable for
10 any reason to determine and dispose of the matters provided for
11 in subsection (b) within 30 days after the report of the master
12 has been filed, it may enter a decree of divorce or annulment.
13 Upon the request of either party and after a hearing, the court
14 may order alimony pendente lite, reasonable counsel fees, costs
15 and expenses and may make a temporary order necessary to protect
16 the interests of the parties pending final disposition of the
17 matters in subsection (b).
18 (d) Substitution for deceased party.--If one of the parties
19 dies after the decree of divorce has been entered, but prior to
20 the final determination in such proceeding of the property
21 rights and interests of the parties under this part, the
22 personal representative of the deceased party shall be
23 substituted as a party as provided by law and the action shall
24 proceed.]
25 (c.1) Bifurcation.--With the consent of both parties, the
26 court may enter a decree of divorce or annulment prior to the
27 final determination and disposition of the matters provided for
28 in subsection (b). In the absence of the consent of both
29 parties, the court may enter a decree of divorce or annulment
30 prior to the final determination and disposition of the matters
20030S0095B0821 - 4 -
1 provided for in subsection (b) if:
2 (1) at least one year has elapsed since grounds have <--
3 been established as provided in subsection (g); and
4 (2) the moving party has demonstrated that:
5 (i) compelling circumstances exist for the entry of
6 the decree of divorce or annulment; and
7 (ii) sufficient economic protections have been
8 provided for the other party during the pendency of the
9 disposition of the matters provided for in subsection
10 (b).
11 (d.1) Death of a party.--In the event one party dies during
12 the course of divorce proceedings, no decree of divorce has been
13 entered and grounds have been established as provided in
14 subsection (g), the parties' economic rights and obligations
15 arising under the marriage shall be determined under this part
16 rather than under 20 Pa.C.S. (relating to decedents, estates and
17 fiduciaries).
18 * * *
19 (g) Grounds established.--For purposes of subsections (c.1)
20 and (d.1), grounds are established as follows:
21 (1) In the case of an action for divorce under section
22 3301(a) or (b) (relating to grounds for divorce), the court
23 adopts a report of the master or makes its own findings that
24 grounds for divorce exist.
25 (2) In the case of an action for divorce under section
26 3301(c), both parties have filed affidavits of consent.
27 (3) In the case of an action for divorce under section
28 3301(d), an affidavit has been filed and no counter-affidavit
29 has been filed or, if a counter-affidavit has been filed
30 denying the affidavit's averments, the court determines that
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1 the marriage is irretrievably broken and the parties have
2 lived separate and apart for at least one year TWO YEARS at <--
3 the time of the filing of the affidavit.
4 § 3501. Definitions.
5 (a) General rule.--As used in this chapter, "marital
6 property" means all property acquired by either party during the
7 marriage[, including the increase in value, prior to the date of
8 final separation,] and the increase in value of any nonmarital
9 property acquired pursuant to paragraphs (1) and (3)[, except:]
10 as measured and determined under subsection (a.1). However,
11 marital property does not include:
12 (1) Property acquired prior to marriage or property
13 acquired in exchange for property acquired prior to the
14 marriage.
15 (2) Property excluded by valid agreement of the parties
16 entered into before, during or after the marriage.
17 (3) Property acquired by gift, except between spouses,
18 bequest, devise or descent or property acquired in exchange
19 for such property.
20 (4) Property acquired after final separation until the
21 date of divorce, except for property acquired in exchange for
22 marital assets.
23 (5) Property which a party has sold, granted, conveyed
24 or otherwise disposed of in good faith and for value prior to
25 the date of final separation.
26 (6) Veterans' benefits exempt from attachment, levy or
27 seizure pursuant to the act of September 2, 1958 (Public Law
28 85-857, 72 Stat. 1229), as amended, except for those benefits
29 received by a veteran where the veteran has waived a portion
30 of his military retirement pay in order to receive veterans'
20030S0095B0821 - 6 -
1 compensation.
2 (7) Property to the extent to which the property has
3 been mortgaged or otherwise encumbered in good faith for
4 value prior to the date of final separation.
5 (8) Any payment received as a result of an award or
6 settlement for any cause of action or claim which accrued
7 prior to the marriage or after the date of final separation
8 regardless of when the payment was received.
9 (a.1) Measuring and determining the increase in value of
10 nonmarital property.--The increase in value of any nonmarital
11 property acquired pursuant to subsection (a)(1) and (3) shall be
12 measured from the date of marriage or later acquisition date to
13 either the date of final separation or the date as close to the
14 hearing on equitable distribution as possible, whichever date
15 results in a lesser increase. Any decrease in value of the
16 nonmarital property of a party shall be offset against any
17 increase in value of the nonmarital property of that party.
18 However, a decrease in value of the nonmarital property of a
19 party shall not be offset against any increase in value of the
20 nonmarital property of the other party or against any other
21 marital property subject to equitable division.
22 * * *
23 (c) Defined benefit retirement plans.--Notwithstanding
24 subsections (a), (a.1) and (b):
25 (1) In the case of the marital portion of a defined
26 benefit retirement plan being distributed by means of a
27 deferred distribution, the defined benefit plan shall be
28 allocated between its marital and nonmarital portions solely
29 by use of a coverture fraction. The denominator of the
30 coverture fraction shall be the number of months the employee
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1 spouse worked to earn the total benefit and the numerator
2 shall be the number of such months during which the parties
3 were married and not finally separated. The benefit to which
4 the coverture fraction is applied shall include all
5 postseparation enhancements except for enhancements arising
6 from postseparation monetary contributions made by the
7 employee spouse, including the gain or loss on such
8 contributions.
9 (2) In the case of the marital portion of a defined
10 benefit retirement plan being distributed by means of an
11 immediate offset, the defined benefit plan shall be allocated
12 between its marital and nonmarital portions solely by use of
13 a coverture fraction. The denominator of the coverture
14 fraction shall be the number of months the employee spouse
15 worked to earn the accrued benefit as of a date as close to
16 the time of trial as reasonably possible and the numerator
17 shall be the number of such months during which the parties
18 were married and not finally separated. The benefit to which
19 the coverture fraction is applied shall include all
20 postseparation enhancements up to a date as close to the time
21 of trial as reasonably possible except for enhancements
22 arising from postseparation monetary contributions made by
23 the employee spouse, including the gain or loss on such
24 contributions.
25 § 3502. Equitable division of marital property.
26 (a) General rule.--[In] Upon the request of either party in
27 an action for divorce or annulment, the court shall[, upon
28 request of either party,] equitably divide, distribute or
29 assign, in kind or otherwise, the marital property between the
30 parties without regard to marital misconduct in such
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1 [proportions] percentages and in such manner as the court deems
2 just after considering all relevant factors[, including:]. The
3 court may consider each marital asset or group of assets
4 independently and apply a different percentage to each marital
5 asset or group of assets. Factors which are relevant to the
6 equitable division of marital property include the following:
7 (1) The length of the marriage.
8 (2) Any prior marriage of either party.
9 (3) The age, health, station, amount and sources of
10 income, vocational skills, employability, estate, liabilities
11 and needs of each of the parties.
12 (4) The contribution by one party to the education,
13 training or increased earning power of the other party.
14 (5) The opportunity of each party for future
15 acquisitions of capital assets and income.
16 (6) The sources of income of both parties, including,
17 but not limited to, medical, retirement, insurance or other
18 benefits.
19 (7) The contribution or dissipation of each party in the
20 acquisition, preservation, depreciation or appreciation of
21 the marital property, including the contribution of a party
22 as homemaker.
23 (8) The value of the property set apart to each party.
24 (9) The standard of living of the parties established
25 during the marriage.
26 (10) The economic circumstances of each party[,
27 including Federal, State and local tax ramifications,] at the
28 time the division of property is to become effective.
29 (10.1) The Federal, State and local tax ramifications
30 associated with each asset to be divided, distributed or
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1 assigned, which ramifications need not be immediate and
2 certain.
3 (10.2) The expense of sale, transfer or liquidation
4 associated with a particular asset, which expense need not be
5 immediate and certain.
6 (11) Whether the party will be serving as the custodian
7 of any dependent minor children.
8 * * *
9 (f) Partial distribution.--The court, upon the request of
10 either party, may at any stage of the proceedings enter an order
11 providing for an interim partial distribution or assignment of
12 marital property.
13 Section 5 4. Sections 3505(d) and 3506 of Title 23 are <--
14 amended to read:
15 § 3505. Disposition of property to defeat obligations.
16 * * *
17 (d) Constructive trust for undisclosed assets.--If a party
18 fails to disclose information required by [subsection (b)]
19 general rule of the Supreme Court and in consequence thereof an
20 asset or assets with a fair market value of [$500] $1,000 or
21 more is omitted from the final distribution of property, the
22 party aggrieved by the nondisclosure may at any time petition
23 the court granting the award to declare the creation of a
24 constructive trust as to all undisclosed assets for the benefit
25 of the parties and their minor or dependent children, if any.
26 The party in whose name the assets are held shall be declared
27 the constructive trustee unless the court designates a different
28 trustee, and the trust may include any terms and conditions the
29 court may determine. The court shall grant the petition upon a
30 finding of a failure to disclose the assets as required [under
20030S0095B0821 - 10 -
1 subsection (b)] by general rule of the Supreme Court.
2 * * *
3 § 3506. Statement of reasons for distribution.
4 In an order made under this chapter for the distribution of
5 property, the court shall set forth the percentage of
6 distribution for each marital asset or group of assets and the
7 reason for the distribution ordered.
8 Section 6 5. This act shall apply as follows: <--
9 (1) The amendment of the definition of "separate and
10 apart" in 23 Pa.C.S. § 3103 shall apply to complaints served
11 before, on or after the effective date of this paragraph.
12 (2) The addition of 23 Pa.C.S. § 3106 shall apply to
13 premarital agreements executed on or after the effective date
14 of this paragraph.
15 (3) The amendment of 23 Pa.C.S. § 3301(d) shall apply to <--
16 final separations which begin on or after the effective date
17 of this paragraph.
18 (4) (3) The amendment or addition of 23 Pa.C.S. § <--
19 3323(c) and (c.1) shall apply to bifurcation proceedings
20 commenced on or after the effective date of this paragraph.
21 (5) (4) The amendment or addition of 23 Pa.C.S. § <--
22 3323(d) and (d.1) shall apply to the death of one of the
23 parties on or after the effective date of this paragraph.
24 (6) (5) The addition of 23 Pa.C.S. § 3323(g) shall apply <--
25 to bifurcation proceedings commenced on or after the
26 effective date of this paragraph and cases in which one of
27 the parties dies on or after the effective date of this
28 paragraph. For those cases under 23 Pa.C.S. § 3323(g)(3)
29 where the one-year separation period of 23 Pa.C.S. § 3301(d)
30 is not applicable, the court shall determine that the parties
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1 had lived separate and apart for at least two years at the
2 time of the filing of the affidavit.
3 (7) (6) The amendment or addition of 23 Pa.C.S. § <--
4 3501(a)(3) and (a.1) shall apply to all equitable
5 distribution proceedings irrespective of whether the
6 proceeding was commenced before, on or after the effective
7 date of this paragraph.
8 (8) (7) The amendment of 23 Pa.C.S. § 3501(c) shall <--
9 apply to all equitable distribution proceedings commenced on
10 or after the effective date of this paragraph.
11 (9) (8) The amendment or addition of 23 Pa.C.S. § <--
12 3502(a) introductory paragraph, (10.1) and (10.2) shall apply
13 to all equitable distribution proceedings irrespective of
14 whether the proceeding was commenced before, on or after the
15 effective date of this paragraph.
16 (10) (9) The addition of 23 Pa.C.S. § 3502(f) shall <--
17 apply to all divorce proceedings irrespective of whether the
18 action was commenced before, on or after the effective date
19 of this paragraph.
20 (11) (10) The amendment of 23 Pa.C.S. § 3505(d) shall <--
21 apply to all equitable distribution proceedings irrespective
22 of whether the proceeding was commenced before, on or after
23 the effective date of this paragraph.
24 (12) (11) The amendment of 23 Pa.C.S. § 3506 shall apply <--
25 to all orders made on or after the effective date of this
26 paragraph.
27 Section 7 6. This act shall take effect as follows: <--
28 (1) The addition of 23 Pa.C.S. § 3106 shall take effect
29 in six months.
30 (2) Section 6(2) 5(2) of this act shall take effect in <--
20030S0095B0821 - 12 -
1 six months.
2 (3) The remainder of this act shall take effect in 60
3 days.
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