What Is a Legal Separation in Pennsylvania?
In the context of Pennsylvania Divorce law, separation means the cessation of marital cohabitation. While many people mistakenly believe that separation requires the filing of a formal legal action, in fact under Pennsylvania law, no paperwork is required for a couple to become legally separated. All that is required is that you and your spouse physically cease living together under one roof with the intention of one or both of you filing for divorce.
Essentially you are separated for the purpose of establishing a date of separation for equitable distribution and support issues. The separation date is relevant because it starts the statute of limitations clock on marital assets and debts , as well as the commencement of entitlement to spousal support and/or Alimony Pendente Lite (APL). Additionally, the date of separation terminates corresponding rights to spousal support.
Under Pennsylvania law, once you are legally separated, you will continue to have an obligation of support to your spouse until a Divorce Decree is entered. This means that even though you are physically separated upon the filing of divorce, absent a court order to the contrary, you may be required to continue supporting your spouse until your divorce concludes and the Divorce Decree is final.
Legal Grounds for Legal Separation in Pennsylvania
In Pennsylvania, there are no set requirements for filing for a legal separation. Unlike divorce, whereby the party seeking to file needs to establish a ground for the divorce pursuant to the Divorce Code of Pennsylvania, there are no requirements for spouses to fulfill in order to file for a legal separation.
The only requirement for obtaining a legal separation is demonstrating, through filing separate pleadings known as a Complaint and a Certificate of Consent, that a voluntary cessation of cohabitation has occurred, which, in essence, means that the parties have lived apart and have no intention to live together as a married couple.
Once a legal separation is obtained, there are no further requirements such as living apart for a specified period of time. In other words, once a party is legally separated in Pennsylvania, there are no additional steps necessary.
As indicated above, there are no grounds for legal separation in Pennsylvania, which means that spouses do not have to cite any specific reason to file for a legal separation.
How To Obtain a Legal Separation
The requirement for a legal separation in Pennsylvania is statutory as set forth in Section 3103 of the Divorce Code. In short, the requirement is that either spouse must have lived separate and apart from the other spouse for a period of (1) year if the marriage was entered into between October 5, 1980 and September 16, 1994, or 2) years if the marriage was entered into after September 16, 1994. The date that your spouse leaves the marital residence will be the date from which the "separation" requirement runs. However, if your spouse is unreasonably refusing to leave the marital residence you may file for a divorce and seek the court’s assistance with a relocation order. If you are waiting until September 16, 2016 to file the divorce you can still file the Divorce Complaint on September 16, 2016 and request the court to "relieve" you of the remaining 6 month separation requirement. As mentioned above, you must wait (1) year if the date of marriage is from 10/5/80 – 9/16/94. If your date of marriage is after 9/16/94 you must wait (2) years. This time requirement only applies in filing an Action for Divorce. There is no time limit when the parties agree that the marriage is irretrievably broken so that no separation is required. In this case when parties enter into a Marital Settlement Agreement that resolves all issues of support, equitable distribution, child custody and/or alimony, they can file for an Action in Divorce and move forward with the divorce. There is an exception for alimony pendente lite orders and interim distributions of the marital property; however, in most cases, an agreement resolves those claims. If you reach an agreement with your spouse prior to the expiration of the separation requirement, you can file for an Action in Divorce after the expiration of the required waiting period. Typically, if no claim of Divorce Fault (adultery, bigamy, conviction of serious crime, abandonment, habitual drunkenness or cruel and barbarous treatment) is raised by the filing spouse a Complaint in Divorce is filed along with a certificate of divorce counseling*. The filed Complaint will include a notice to defend which will inform the responding party that he/she/it has 20 days to respond to the Complaint by filing an Answer and Counterclaim. If the 20 days expires and no Answer and Counterclaim have been filed, then the court has the ability to grant a Default Judgment in favor of the moving spouse. If both parties have entered into a Marital Settlement Agreement, this is usually the next step. Either spouse can file for a Divorce Decree once the court has granted the Default Judgment. It is important to note that there are supplemental documents that must be filed with a Divorce Complaint and Divorce Decree, however, this information is beyond the scope of this article. An experienced family law attorney will be able to explain the requirements for filing a Divorce Complaint and your rights and obligations that stem from Divorce. When your attorney represents both parties in filing for a Divorce, one representation agreement is typically utilized and signed by both parties. Thereafter, a Marital Settlement Agreement is prepared and signed by both parties. Only then, does one complaint need to be filed with the appropriate documents so that the court can proceed to the entry of an Order and/or Decree of Divorce. The Domestic Relations Section of the Court of Common Pleas is responsible for the administration of divorce and ex-spousal support actions in Pennsylvania. There are offices within the county seat of each judicial district which will assist the parties with the process of a Divorce, such as scheduling Forensic Evaluators for Custody matters, Scheduling hearings and conferences, and processing supporting documentation for Divorce law actions.
Impact on Marital Property and Debts
The most significant aspect of legal separation in Pennsylvania is the effect it has on marital assets and debts. Upon entry of a divorce complaint, the Court presumes that all property acquired by either spouse during the marriage to date is "marital property." That means that the Court can essentially divide all of the property in half upon entry of a divorce decree. Because the presumption goes both ways, it also prevents parties from sharing in the financial benefits of the marital estate while also keeping the other spouse’s value out.
From most antedivorce attorneys, the point of entry of legal separation seems to be the obvious date. "Legal separation" was defined in the 1990 case of Fawzy v. Fawzy as "the period of time between the date of filing of a complaint in divorce and the date of final divorce [that] severs the financial and economic dependencies of the parties." As such, most folks presume that marital assets should be separated as of that date. However, courts have slowly begun to apply different rules for certain assets acquired after that date. Most commonly, people who receive an inheritance after filing for divorce are protected from that value despite the date of separation.
The court presumes that the value of any property acquired by gift, bequest, devise, or descent during the pendency of the divorce is non-marital property unless otherwise agreed. However, keep in mind that the recipient of a post-filing marital gift must turn over the date of acquisition and fair market value to the other spouse upon request. Focusing back on the presumption that "everything acquired during the marriage is marital property," practically speaking this clause protects one spouse from being hoisted with the burden of inheriting a life-altering estate. Additionally, what happens if both spouses inherit? Often times the inheritance is so substantial that it shifts the balance of the marital estate, and the Court can then consider all of the circumstances in dividing property.
This being said, just because inheritances are considered separate property does not mean that a party will be able to walk away with the entire inheritance. For example, let’s say Joe and Marsha choose to separate one year into their marriage, and immediately thereafter a close relative passes away leaving a sizeable inheritance of $400,000. Six months after the inheritance is received, Marsha files for divorce and Joe wants Marsha to share in half of the inheritance. Despite Marsha’s legal claim to the benefit of the inheritance, this Court will have the authority to consider the following factors in making any equitable distribution award:
Custody and Support Issues
How custody and support arrangements are handled during a legal separation in Pennsylvania
One of the most important considerations when a couple separates is the arrangement about who will have custody of the children. Harmful and lifelong impacts on the children can occur if not handled properly. The same goes for child support and spousal support that must be paid from one ex-spouse to the other. Legal separation in Pennsylvania does not automatically determine the issue of custody, child support, or spousal support for the separating spouses.
However, Pennsylvania does provide that the parties and counsel may enter into a written plan known as a Custody Conciliation Agreement and approved by the court. This agreement provides a detailed plan about legal and physical custody of each child, and precisely when the child(ren) will reside with each parent. It may also consider other issues such as a plan for transportation of the children to and from visitation , and what happens if one or both parents decide to move out of state, city, or county.
In addition, the parties may also arrange for an interim support award until the parties obtain a divorce, an award of interim spousal support, and/or current and/or prospective payment of child support for the children. Pennsylvania recommends that divorce litigants engage a professional support conference officer to help them reach an interim agreement on spousal and/or child support during their period of separation.
This support conference will be considered an agreeable amount until the permanent amount is reached after the grant of a divorce. While the parties can agree on a temporary custody arrangement, the court will only consider it to be a guideline and not a binding arrangement until an official custody order is entered by the court.
Advantages and Disadvantages of Legal Separation
Regardless of the ultimate path forward such as divorce, reconciliation, or separation, most people want to maximize their protections and make their lives easier through the process. For some, the best option is legal separation.
Benefits of Legal Separation
A legal separation establishes equivalent protections to legal agreements during the divorce process. This includes equitable property division, spousal rights to insurance benefits and estate planning, and even alimony enforcement. It acts as a final agreement, not just an agreement-in-principle.
Separation v. Divorce
Separation might be appropriate because you are not eligible to file for divorce at the moment. Those considerations include: You may also determine that you and your spouse simply need time apart to gain a fresh perspective on your marriage and wish to pursue reconciliation. Legal separation makes this legally possible.
Preparing for Divorce
Even if you are not ready to make the leap, a legal separation will help you establish an orderly path going forward. You can begin to divide assets, determine support obligations and set expectations with your spouse. Most importantly, you can begin to take control over your finances. You begin to establish a separate credit history and demonstrate financial independence so that it is easier to qualify for a mortgage, purchase a car or open a new credit card.
Drawbacks to Legal Separation
There are several drawbacks to legal separation that you should consider. If you have also started a new relationship, put your efforts into divorce. This new relationship will be subject to the same protections during divorce. If someone else falls in love with your spouse during the separation period, that person risks being implicated in future divorce proceedings. Evaluate your goals and what road is best for you. When the issue is divorce instead of separation (or vice versa), consult a family law attorney in Pennsylvania.
Getting from Legal Separation to Divorce
Following a legal separation, the Court can enter a Divorce Decree, assuming there are no outstanding issues between the parties. In order to obtain the Divorce Decree, the parties must comply with the Divorce Code regarding the time frames required to enter the Divorce Decree. In essence, the waiting period to move from a legal separation to a divorce is nine months. Therefore, a party can move from a legal separation to a divorce in as little as ten months.
Since a spouse cannot file for a divorce until they have been separated for at least 90 days, a spouse will not be able to enter a divorce decree in less than nine months. The Court will typically docket the complaint, and the divorce action will be listed where the parties reside. The parties may then file a counter-complaint in divorce with that county.
The only grounds for a no-fault divorce is mutual consent whereby both parties agree after 90 days of living separately they can secure a divorce. To establish a no-fault ground for divorce, the parties must comply with the law. Both spouses must execute an Affidavit of Consent, which states they no longer wish to remain married to each other. Once the Affidavits are filed with the Court, the parties may then schedule a hearing (if necessary) before the Court for consideration.
A note regarding Fault grounds: As to fault grounds for divorce, a spouse, prior to filing for a divorce, cannot resume living with the other spouse for a period of more than 90 days during which period the parties attempt a reconciliation of the differences that caused the estrangement.
If the parties do attempt a reconciliation during some period within the 90 days, the fault ground is still preserved as long as they do not resume living together. Also note a court cannot grant a non-consent divorce within the first 90 days of separation.
FAQs about Pennsylvania Legal Separation
How long does legal separation last in Pennsylvania?
In Pennsylvania, legal separation is a long-term agreement. Those who sign a legal separation must be aware that there are no minimum or limitations on how long a legal separation can last. The separation will remain in effect until the parties reach an agreement to reconcile their marriage or file for a divorce.
Do I have to file anything with the courts to legally separate in Pennsylvania?
In Pennsylvania, legal separation does not require any court filings. However, once you file for a divorce, you must file a claim to be declared separated after you divorce from your spouse. A court order allows you to change your name without an additional court action through the divorce order .
Do I have to file for separation before I file for divorce in Pennsylvania?
You do not have to legally separate from your spouse in Pennsylvania before filing for divorce; however, the law in Pennsylvania does not allow for divorce until either spouse has lived apart from the other for one year, unless both spouses agree to a divorce after six months of living apart.
Can I be required to pay spousal support during a legal separation in Pennsylvania?
Courts in Pennsylvania can require one spouse to pay another spousal support during a legal separation. Pennsylvania courts look at the needs of the spouse requesting support, the earning capabilities of the spouse receiving support, and the ability of the supporting spouse to continue to afford his or her own living expenses. If the court approves, the support order stays in effect until the divorce is finalized.