Rule 1920.42. Affidavit and Decree under §  3301(c) or §  3301(d)(1) of the Divorce Code. Notice of Intention to Request Entry of Divorce Decree in §  3301(c) and §  3301(d)(1)(i) Divorces. Counter-affidavit.

 (a)  If a complaint has been filed requesting a divorce on the ground of irretrievable breakdown and

   (1)  both parties have filed an affidavit under §  3301(c) of the Divorce Code substantially in the form prescribed by Rule 1920.72(b), or

   (2)  either party has filed a §  3301(d) affidavit under §  3301(d) of the Divorce Code substantially in the form prescribed by Rule 1920.72(d) and has served it upon the other party along with a form counter-affidavit and the other party has admitted or failed to deny the averments of the §  3301(d) affidavit, the prothonotary on praecipe in the form prescribed by Rule 1920.73(b) shall transmit the record to the court, which shall review the record and enter the appropriate decree. No master shall be appointed.

 (b)  The affidavit required by §  3301(c) of the Divorce Code must have been executed

   (1)  ninety days or more after both filing and service of the complaint and

   (2)  within thirty days of the date the affidavit was filed.

 (c)  An affidavit of consent may be withdrawn only with leave of court.

 (d)(1)  Except as provided in (e), no decree shall be entered by the court under §  3301(c) or §  3301(d)(1)(i) of the Divorce Code unless a notice of intention to request entry of divorce decree, substantially in the form prescribed by Rule 1920.73(a), was mailed or delivered to the attorney of record of the party against whom the decree is to be entered or, if there is no attorney of record, to the party, along with a form counter-affidavit if none has been filed, at least twenty days prior to the date of the filing of the praecipe to transmit the record. A copy of the praecipe, which shall state the date and manner of service of the notice, shall be attached.

   (2)  The affidavit required under §  3301(d) of the Divorce Code shall be filed with the prothonotary and served upon the other party, along with a form counter-affidavit. The moving party must wait a minimum of 20 days after service of the §  3301(d) affidavit before serving the Notice of Intention to File Praecipe to Transmit the Record and another form counter-affidavit or filing the waiver of notice pursuant to Rule 1920.72(c).

 (e)  Notice of intention to request entry of divorce decree shall not be required prior to entry of a divorce decree

   (1)  where the parties have executed and filed with the prothonotary a waiver of notice substantially in the form set forth in Rule 1920.72(c); or

   (2)  under §  3301(d) where the court finds that no appearance has been entered on defendant’s behalf and that defendant cannot be located after diligent search.

   Official Note

   This counter-affidavit will be filed only if the party against whom the decree is to be entered has not previously denied the allegations of the other party’s affidavit or has not previously claimed economic relief by counterclaim or petition.

Source

   The provisions of this Rule 1920.42 adopted June 27, 1980, effective July 1, 1980, 10 Pa.B. 2967; amended January 28, 1983, effective July 1, 1983, 13 Pa.B. 677; amended November 7, 1988, effective January 1, 1989, 18 Pa.B. 5324; amended May 17, 1991, effective July 1, 1991, 21 Pa.B. 2615; amended September 11, 1995, effective January 1, 1996, 25 Pa.B. 4099; amended April 10, 1997, effective July 1, 1997, 27 Pa.B. 2042; amended March 2, 2000, effective immediately, 30 Pa.B. 1646; amended May 6, 2015, effective July 1, 2015, 45 Pa.B. 2457. Immediately preceding text appears at serial pages (265473) to (265474).



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