We live in a day of what is termed “graying divorce.” Older couples are deciding that what no man should put “asunder” will be asundered anyway, Gospel of St. Matthew notwithstanding. And as we all know, the divorce is neither quick nor easy, so times arise when one of the litigants receives the “call from above” before the divorce is complete. The Superior Court tried to address this subject last year in Shell v. Shell, 304 A.2d 401. In that case, a claim was made that admissions in a complaint or subsequent filing other than a Pa.R.C.P. 1920.42 affidavit could suffice as grounds as defined by 23 Pa.C.S. 3323 (d) & (g).

Last week brought a new precedential opinion on the same topic. In McWilliams v. McWilliam,  2024 Pa. Super. 224 (9/26/2024) the unhappy couple was married in 2008. In September 2021 wife filed for divorce in Allegheny County. The complaint was served within 30 days. While there were “filings” during the next two years by wife, she did nothing to establish divorce grounds on the docket. Meanwhile in December 2023, husband filed a 3301(d) affidavit and served it on wife with a blank counter affidavit. Oddly, but not uncommonly, his signature on the affidavit was 90 days old. Apparently, he or his counsel saw the potential problem of staleness and he immediately prepared, filed and served wife with a new 3301(d) affidavit during the first week of January 2024. All husband’s documents identified September 2021 (wife’s divorce filing date) as the date of separation.

So, to recap, on January 3 of this year, Husband signed a fresh 3301(d) affidavit. On January 4 it was filed with the court. On January 5 it was served on wife. Just one more hitch. Husband died on January 4, that being the day after he signed the fresh affidavit.

Curiously, the now dead husband’s counsel proceeded to file a certification of service of the affidavit in early February 2024. This begot a motion by a motion by wife to discontinue the divorce action stating the grounds had not been established so the divorce should abate. The Common Pleas Court agreed and dismissed the case.

Now deceased husband’s administrator appealed the order of dismissal. In so doing the administrator asserted that two weeks after her husband’s death, wife had “served a counter-affidavit on husband” (recall he was still dead) which did not deny that the averred separation date. Sadly the opinion does not reveal how one serves the dead.

The administrator’s problem was that while it appears a counter-affidavit may have been executed by wife in which she did not contest the separation date, that document never made it into the certified record. The opinion of the Superior Court appears to suggest it was also never filed with the court.

The crux of this ruling seems to be that when a party dies, the divorce train stops. This would make sense in a world where death may be the only fact that litigants in divorce cannot contest. One can only wonder about the emotions associated with learning that the man to whom you were married for more than a decade and from who you have been seeking a divorce since September 2021 has died. The idea that you needed to come back from the funeral (assuming you attended) to answer affidavits or interrogatories or requests for admission promulgated by the decedent seems quite strange. But, in a setting where the appellate opinion states there was no counter-affidavit in the record, it is possible that a different ruling could follow. One has to assume that whatever her state of mourning, wife who filed for divorce in 2021 decided that the benefits of life as a surviving spouse exceeded those of a divorced one.