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Quick Answer:

Can I force my spouse to take a drug test?

While a Court might require a parent to be tested for drugs in a custody case where that person’s fitness to be a parent is important to know, forcing such testing in a divorce action, especially a low-cost, simple, uncontested, no-fault divorce, just is not likely to ever happen.

 

Some people have shown interest in whether or not their spouse can be forced to take a drug test. Before getting into the facts, let me stress that whether or not either party has any type of drug problem is meaningless in a Pennsylvania low-cost, simple, uncontested, no-fault divorce action (unless a party is so completely impaired when signing a divorce document that it could be proven that that party had no idea what was being signed… an extremely rare occurrence in my experience since 1974).

A recent Pennsylvania (not United States) Supreme Court decision made it clear that, in a child abuse case, a parent could not be compelled to take such a test by a specific government agency. In that case, it was Child Protective Services (a governmental office with the power, where appropriate, to remove a child from a parent’s custody) that required a parent to be tested as a condition to allowing a child to remain in that parent’s custody. Our State Supreme Court said forcing a drug test was beyond the legal authority of the agency and doing so was a clear violation of the parent’s right to privacy under the constitution’s fourth amendment.

Keep in mind that the above court decision affected that ability of that specific government agency to force a drug test. What about in a custody case between parents? That is different. If the proven facts in an action for custody – not a divorce action nor a divorce action filed with a custody action – show the possibility that a parent’s harmful behavior could be explained by the use of drugs, the judge could look favorably upon a petition to compel a test. It could even be the case that the judge, without a petition filed, may order a test.

All of the foregoing has to do with the safety of children and nothing to do with a Pennsylvania divorce action. A serious drug problem could lead to grounds for a fault – as opposed to a no-fault – divorce, such as cruel and barbarous treatment. Physical abuse is the ultimate example of that and to win such a divorce case, the abuse itself must be proven, not a drug habit. You see, in such a complex and expensive divorce, it is the bad behavior that must be proven as the grounds for the divorce even if the drug problem leads to the bad behavior.

It may well be that no one should be compelled to stay married to a spouse with a serious drug problem, but such a problem is not grounds for a Pennsylvania divorce, only the bad behavior being caused by the drug problem could possibly arise to be such grounds. Accordingly, if one is married to a spouse with a serious drug issue but it is not creating the bad behavior required under our law as grounds for a fault divorce, one should consider separating fully from that spouse. Then, after twelve continuous months of separation at a relatively high cost, a no-fault divorce can be forced through the court even if the spouse opposes it. Remember! I said at a relatively high cost. Such a divorce would have to be handled in your local court and upfront fees in excess of $3000.00 are common; moreover, contesting such a case is easy, cheap and does not require your spouse to hire a lawyer. Why? Because, as part of the process, your high-priced attorney must send your spouse the very document your spouse can simply sign and send to court to contest the case. Then, to continue, your lawyer must schedule a hearing. Just that step would be thousands in additional court fees and many thousands more in additional lawyer fees. (I want to add here that it is grounds for a fault divorce if one commits a crime for which one could be sentenced to prison for one or more years. Certain drugs issues can carry that penalty…but it is still of no help in a low-cost, simple, uncontested, no-fault divorce.)

I trust that you now understand that, even after a lengthy separation, NO divorce is ever “automatic” if your spouse chooses – perhaps just to be mean – to file the contest affidavit that your attorney must, by law, give to your spouse.

If you have been living under a completely different roof than your spouse for EVERY DAY of the past twelve months but your spouse will not cooperate, please call me. I have helped countless clients solve this problem with solid, time-tested advice, 1-800-486-4070.