For Pennsylvania couples who are contemplating divorce, it is important to understand marital separation and its legal ramifications. Marital separation is defined by Pennsylvania divorce statutes as the date when spouses began to live “separate and apart.” Spouses begin to live separate and apart when there is a “cessation of cohabitation, whether living in the same residence or not,” 23 Pa. C.S.A. §3103. Yet, it may not be as simple as it seems, as spouses may be deemed to be separated even when living under the same roof.
What is marital separation under Pennsylvania law?
Spouses are considered to be separated when they live separate and apart. This does not necessarily mean one of the spouses has to move. Pennsylvania statutes and case law have defined three ways in which this occurs:
- Spouses can be deemed separated when one spouse moves out of the house permanently into another residence. This can be difficult to prove if a spouse is spending significant time away from the residence, but it is not clear if that move is permanent, such as in a situation where the parties are experiencing marital problems and one spouse is required, by employment, to live in a separate residence (perhaps out of state) for a significant period of time for his or her job. Generally speaking, however, when a spouse establishes a new residence or separate residence from the other spouse, the separation is deemed to have occurred.
- A separation might occur by starting a divorce action. Even if parties are living in the same house “In the event a complaint in divorce is filed and served, it shall be presumed that the parties commenced to live separate and apart not later than the date the complaint was served,” 23 Pa. C.S.A. §3103. Therefore, although the separation might have occurred earlier than the divorce, absent proof the parties reconciled or other intervening events occurred after the divorce complaint was filed that indicated the spouses did not intend to separate, the separation can be no later than the filing for divorce.
- Spouses can be separated even if they are living in same household. This can occur when they are, in essence, living separate lives, such as where a spouse has established separate bank accounts, separated his or her finances, began openly dating and is sleeping in a separate part of the residence. Since proving a separation when spouses are in the same residence is very fact intensive, it is difficult to prove and often not a good idea to rely upon one’s ability to prove the separation occurred when the spouses are not physically separated and no divorce complaint has occurred.
It is important to note that Pennsylvania does not recognize a legal separation for tax filing status or other purposes. (Note this is different than states where legal separations are recognized because a form or some other formal mechanism is used to establish the separation has occurred.)
Why is the date of separation important?
A marital separation is important to establish for two reasons. First, it affixes the date on which the identity (although not necessarily the value) of marital assets is determined. Generally speaking, when the right to acquire assets or the actual acquisition of the assets occurs after separation, those assets might be deemed a separate asset of the spouse who acquired them and not part of the marital estate to be divided. Thus, establishing a separation date for purposes of identifying what will or will not be in the marital pot is quite important.
The separation date is important for another reason. In order to obtain a no-fault divorce where one spouse does not consent, a party must establish two years of separation in Pennsylvania.
How do you know if you’re separated?
Contacting an experienced divorce practitioner and explaining the facts of your case is important to determine whether you are separated, and the consequences of the separation. Separation affects the timing of a divorce, the division of assets and other aspects of your case.
Call a Pollock Begg attorney to develop a plan for dealing with this important topic in your case.