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In re Order Amending Rules 1920.17

Supreme Court of Pennsylvania

May 6, 2015

IN RE: ORDER AMENDING RULES 1920.17, 1920.31, 1920.33, 1920.42, 1920.54, 1920.55-2, 1920.71, 1920.72 AND 1920.75 OF THE PENNSYLVANIA RULES OF CIVIL PROCEDURE

CIVIL PROCEDURAL RULES DOCKET

AMENDED ORDER

PER CURIAM

AND NOW, this 6th day of May, 2015, upon the recommendation of the Domestic Relations Procedural Rules Committee; the proposal having been published for public comment in the Pennsylvania Bulletin, 43 Pa.B. 7244 (December 14, 2013) and republished for additional comment in the Pennsylvania Bulletin, 44 Pa.B. 4165 (July 5, 2014):

IT IS ORDERED pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rules 1920.17, 1920.31, 1920.33, 1920.42, 1920.54, 1920.55-2, 1920.71, 1920.72 and 1920.75 of the Pennsylvania Rules of Civil Procedure are amended in the attached form.

This ORDER shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective on July 1, 2015.

Rule 1920.17. Discontinuance. Withdrawal of Complaint.

(a) The plaintiff may withdraw the divorce complaint and discontinue the divorce action by praecipe that includes a certification that:

(1) no ancillary claims or counterclaims have been asserted by either party; and
(2) grounds for divorce have not been established.

(b) A party may withdraw a claim of equitable distribution only:

(1) by written consent of both parties filed with the court, or
(2) after filing and serving on the other party a written notice that the party intends to withdraw the claim of equitable distribution 20 days after service of the notice.

(c) The notice required in subdivision (b) above shall be substantially in the following form:

(Caption)

NOTICE OF INTENTION TO WITHDRAW CLAIM FOR EQUITABLE DISTRIBUTION

TO: ____

(PLAINTIFF) (DEFENDANT)

(Plaintiff) (Defendant) intends to withdraw (his) (her) pending claim for equitable distribution of property twenty days after the service of this notice. Unless you have already filed with the court a written claim for equitable distribution, you should do so within twenty days of the service of this notice, or you may lose the right to assert a claim for equitable distribution. If a decree in divorce is entered and you have not filed a claim for equitable distribution, you will forever lose the right to equitable distribution of property.

YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.

(Name) ___

(Address)___

(Telephone)___

(d) In the event one party dies during the course of the divorce proceeding, no decree of divorce has been entered and grounds for divorce have been established, neither the complaint nor economic claims can be withdrawn except by the consent of the surviving spouse and the personal representative of the decedent. If there is no agreement, the economic claims shall be determined pursuant to the Divorce Code. If no personal representative has been appointed within one year of the decedent's death, then, upon motion of the surviving party, the court may allow the withdrawal or dismissal of the complaint and/or any pending economic claims.

Note: To the extent that Tosi v. Kizis, 85 A.3d 585 (Pa. Super. 2014) holds that 23 Pa.C.S. §3323(d.1) does not prevent the plaintiff in a divorce action from discontinuing the divorce action following the death of the defendant after grounds for divorce have been established, it is superseded.

Rule 1920.31. Joinder of Related Claims. Child and Spousal Support. Alimony. Alimony Pendente Lite. Counsel Fees. Expenses.

(a) (1) [Within thirty days after the service of the pleading or petition containing a] When either party has raised a claim for alimony or counsel fees, costs and expenses, each party shall file a true copy of the most recent federal income tax return, pay stubs for the preceding six months, a completed Income Statement in the form required at Rule 1910.27(c)(1) and a completed Expense Statement in the form required by Rule 1910.27(c)(2)(B). A party may not file a motion for the appointment of a master or a request for court action regarding alimony, alimony pendente lite or counsel fees, cost and expenses until at least 30 days following the filing of that party's tax returns, Income Statement and Expense Statement. The other party shall file the tax returns, Income Statement and Expense Statement within 20 days of service of the moving party's documents. If a claim for child support, spousal support or alimony pendente lite is raised in a divorce complaint, no expense form is needed in a support action that can be decided pursuant to the support guidelines unless a party claims unusual needs or unusual fixed expenses or seeks deviation pursuant to Rule 1910.16-5 or apportionment of expenses pursuant to Rule 1910.16-6.

Rule 1920.33. Joinder of Related Claims. Distribution of Property. Enforcement.

(a) [Within ninety days after service of a pleading or petition containing a claim for determination and distribution of property under Section 3502 of the Divorce Code, e]Each party shall file an inventory specifically describing all property owned or possessed at the [time the action was commenced] date of separation. A party may not file a motion for the appointment of a master or a request for court action regarding equitable distribution until at least 30 days following the filing of that party's inventory. The other party shall file the inventory within 20 days of service of the moving party's inventory. The inventory shall set forth as of the date of [the filing of the complaint] separation:

(1) a specific description of all marital property in which either or both have a legal or equitable interest individually or with any other person and the name of such other person and all marital liabilities; [and]

(2) a specific description of all property [in which a spouse has a legal or equitable interest which is claimed to be excluded from marital property] or liabilities that are claimed to be non-marital and the basis for such [exclusion] claim[.]; and

(3) the estimated value of each item of marital and non-marital property and the amount of each marital and non-marital liability.

Note: Subdivision (c) of this rule provides sanctions for failure to file an inventory as required by this subdivision. An inventory [filed within the ninety day period] may be incomplete where the party filing it does not know of all of the property involved in the claim for equitable distribution. Consequently, the rule does not contemplate that a party be precluded from presenting testimony or offering evidence as to property omitted from the inventory. The omission may be supplied by the pre-trial statement required by subdivision (b).

(b) Within the time required by order of court or written directive of the master or, if none, at least sixty days before the scheduled hearing on the claim for the determination and distribution of property, each party shall file and serve upon the other party a pre-trial statement. The pre-trial statement shall include the following matters, together with any additional information required by special order of the court:

(1) a list of assets, which may be in chart form, specifying
(i) the marital assets, their value, the date of the valuation, whether any portion of the value is non-marital, and any liens or encumbrances thereon; and

(ii) the non-marital assets, their value, the date of the valuation, and any liens or encumbrances thereon;

(2) the name and address of each expert whom the party intends to call at trial as a witness. A report of each expert witness listed shall be attached to the pre-trial statement. The report shall describe the witness's qualifications and experience and state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion;

(3) the name, address and a short summary of the testimony of each person, other than the party, whom the party intends to call at trial as a witness;

(4) a list of all of the exhibits which the party expects to offer in evidence, each containing an identifying mark. Any exhibits that do not exceed three pages shall be attached to the pre-trial statement, and any exhibits which exceed three pages shall be described;

(5) the party's gross income from all sources, each payroll deduction, and the party's net income, including the party's most recent state and federal income tax returns and pay stubs;

(6) if the party intends to offer any testimony as to his or her expenses, an Expense Statement in the form required by Rule 1910.27(c)(2)(B);

(7) the value of a pension or retirement benefits, the marital portion thereof, and the facts and documentation upon which the party relies to support the valuation;

(8) if there is a claim for counsel fees, the amount of fees to be charged, the basis for the charge, and a detailed itemization of the services rendered;

(9) where there is a dispute, the description and value of any items of tangible personal property, the method of evaluating each item, and the evidence, including documentation, to be offered in support of the valuation;

(10) a list of marital debts including the amount of each debt as of the date of separation, the date on which the debt was initially incurred, the initial amount of the debt and its purpose, the amounts and dates of payments made since the date of separation, and the evidence that will be offered in support of the claim;

(11) a proposed resolution of the economic issues.

(c) If a party fails to file either an inventory as required by subdivision (a) or a pre-trial statement as required by subdivision (b), the court may make an appropriate order under Rule 4019(c) governing sanctions.

(d) (1) A party who fails to comply with a requirement of subdivision (b) of this rule shall, except upon good cause shown, be barred from offering any testimony or introducing any evidence in support of or in ...


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