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Law School Case Brief

Frey v. Frey - 2003 PA Super 135, 821 A.2d 623

Rule:

23 Pa. Cons. Stat. Ann. § 3301(d)(1) provides that a court may grant a no-fault 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.

Facts:

The husband filed a divorce complaint, alleging that the parties had separated more than two years before the date he filed the complaint and that the marriage was irretrievably broken. The wife filed an answer opposing the entry of a divorce decree on the grounds that the parties had not separated more than two years before the complaint was filed. She testified that the parties continued to live together, to have intercourse, and to take family vacations after the date claimed by the husband. The trial court ruled in favor of the husband, and the wife challenged the order.

Issue:

Did the trial court err in establishing the date of separation of the parties for purposes of granting the divorce decree?

Answer:

No.

Conclusion:

The court affirmed the order of the trial court holding that it was entitled to determine the credibility of the witnesses, and the evidence supported a finding that the husband and wife lived separate lives even though they generally slept under the same roof. The wife waived her claim that her motion for reconsideration was denied in error by failing to cite any authority supporting her position.

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