Pennsylvania Divorce: What is the legal date of separation?
In separating property during a divorce, the date of separation is an important legal moment. It determines the difference between marital and non-marital property and debt. In Pennsylvania, there is no such thing as “legal” separation – you are either married or you aren’t. Still, determining a date of separation is important as it starts the clock for the one-year (or two-year, if separated prior to December 5, 2016) waiting period required to prove grounds for separation for divorce, also known as a Section 3301(d) divorce.
Pennsylvania Divorce code specifies that the date of separation of a married couple begins on the date the two began to live “separate and apart.” How couples define living “separate and apart” can become a point of contention upon which thousands of dollars might rest.
The majority of divorcing couples mutually define their date of separation as the date one spouse moved out of the marital residence without intent to return. This certainly satisfies the law’s requirement for “Cessation of Cohabitation.” But what if, as in many cases, both parties remain under the same roof, or even in the same bedroom, but consider themselves separated?
Pennsylvania divorce code adds the qualifier “Cessation of Cohabitation, whether living in the same residence or not.” To be a date of separation, one of the parties must clearly communicate to the other their intent to end the marriage. The parties must cease presenting themselves as a married couple. Further, the state has defined Cohabitation as the “mutual assumption of those rights and duties attendant to the right of husband and wife.” Mackey v. Mackey, 545 A.2d. 362 (Pa. Super. 1988).
Historically, Pennsylvania courts have also taken into account some of the following criteria when determining a date of separation:
- How much time the parties spend at the marital residence together.
- Whether or not the parties give the appearance that everything is fine only for their child’s sake.
- Whether the parties eat meals together.
- Whether or not the parties take vacations and go on outings together .
- Whether the parties live separate social lives.
- Whether the parties sleep in the same room.
- Whether the parties had sexual relations.
No one of these criteria is enough to determine a separation date; rather all can be taken into account. However, Pennsylvania law provides that, “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 that the complaint was served.”
The longer a couple has been separated but not divorced, the more likely a dispute may arise as to the exact date of separation. Determining your date of separation, and its implications in the division of your marital assets and debts, is part of the service my office offers. If you’d like a free first consult, call 215-345-5259.
– Elissa C. Goldberg, Esquire