What you need to know about Separation before a Pennsylvania Divorce
Under Pennsylvania divorce laws, the there might be a need for parties to have been separate for a while before the divorce. This period of time is called a separation.
While the Pennsylvania divorce laws do not expressly require separation, there are cases where the parties to the marriage need to have lived apart for some time.
Separation is different from legal separation. A legal separation refers to an arrangement where a couple chooses to separate without legally divorcing .
For instance, a married couple who feel their marriage has broken down irretrievably can decide to live apart temporarily. This is to see if they really want a divorce or if they don’t believe in divorce.
Under the arrangement, they can continue to do things together like paying taxes while living as separate individuals.
There are also arrangements for child custody, visiting rights, and other matters that are normally taken care of in divorce.
Some US states such as California allow couples to get legally separated as an alternative to divorce. The arrangement lets the couples remain legally married but separated for all marital intents and purposes.
However, Pennsylvania does not have a legal separation process. Rather, what it focuses on is the date of separation between the spouses. This date of separation is vital for several reasons as you will see below.
When is separation necessary before divorce in Pennsylvania?
As mentioned earlier, there is no legal separation in Pennsylvania. However, separation between spouses may be required before divorce in some instances.
In these instances, the law sets a time period that parties have to comply with before they can be eligible to proceed with their divorce. The instances are as follows:
Mutual consent divorce
Under Pennsylvania law, spouses can decide to get a mutual consent divorce. In this type of divorce, both parties essentially agree to separate on the ground that the marriage has irretrievably broken down.
Usually, no fault is apportioned between the parties since the marriage is being brought to an end based on their mutual agreement. This is also called an uncontested divorce.
A mutual consent divorce cannot however be completed unless it is shown that 90 days have elapsed since the commencement of the action. During the 90 days, it must be clear than the marriage has irretrievably broken down indeed.
Unilateral “no-fault” divorce
If one party to the marriage does not agree to the divorce, it is possible to file a divorce complaint unilaterally. This unilateral action is known as a “unilateral no-fault divorce”.
In this type of divorce, the plaintiff has to base the divorce complaint on the ground that the marriage has irretrievably broken down. However, the plaintiff must also show that the parties have lived separate and apart for a period of at least 2 years prior to filing the complaint.
Where the circumstances leading to the end of a marriage are alleged to have been caused or brought about by one of the spouses, then the divorce is known as a fault divorce.
In this type of divorce, the complaint must be based on one of the grounds provided under the law for dissolution of marriage. The grounds provided include adultery, desertion, insanity and bigamy.
If the complaint is based on the ground of desertion, the plaintiff must show that the parties have lived separate and apart for at least 1 year. This separation must be due to the malicious desertion of the defendant and absence from the marital home without reasonable cause.
Why is a date of separation necessary?
Apart from determining how long the parties to the divorce have lived apart, it is also vital to determine the exact date when they started to live apart. This is in essence, the date of separation.
Ascertaining this date of separation is vital to the resolution of many issues that will crop up during the course of the divorce including the following.
Determination of mandatory waiting periods
Before the court can determine if the parties have fulfilled the requirements for separation under the provisions of the divorce laws, it is necessary to determine the date of separation.
This date will then be used to calculate the ensuing period and whether the mandatory waiting period has lapsed.
Apportionment of debt
Usually, both spouses are deemed responsible for any debts incurred during the course of the marriage. However, from the date of separation, it is deemed that the parties have stopped acting as a couple and should not be made to share the joint responsibility for debts that accrue after that date.
The court would thus try to determine the date of separation to establish what portion of the debts would be shared by the spouses and what portion they would bear individually.
Separation of joint finances
Many couples prefer to operate joint accounts. And for even those who do not, the court can adjudge their finances to be jointly held.
At the time of dissolution of the marriage, the court has to distinguish between what finances can be considered as belonging to the couple and those that are held individually.
Establishment of a “cut-off” date for acquisition of marital assets
During the divorce proceedings, the judge would have to determine how the assets accrued during the marriage will be divided between the spouses.
It is only when the court is deciding on the starting date of the separation that it can decide on which assets would be divided and which ones the parties would own individually.
Establishing the date of separation
Establishing the date of separation can be and often is a difficult proposition. This is because divorce is rarely a planned event. So the parties may have begun to drift apart long before they were conscious of the fact.
Apart from this, it can be difficult to determine exactly what amounts to separation. Since separation can occur even when the parties are still living under the same roof, it may not be exactly clear when the separation began.
Of course, the standard that the court applies is to ask “At what point did the spouses stop acting like a married couple?”
Further complicating the situation is the fact that if the couple resumes marital relations at any point of the separation, the whole period resets and starts fresh from a subsequent resumption of hostilities between the parties.
There are however indications that the court can look to. These include:
- The date of filing divorce complaint
- One party’s behaviour e.g. moving out of the marital home
- Express words by one spouse to the other
Sit with a lawyer for better guidance
Although there’s no ambiguity in the Pennsylvania divorce laws, experience has shown that each case has peculiar circumstances that can have material change on how the law will be applied.
It’s very important to sit with a lawyer and let them hear your story so they can advise you on how the law applies particularly to your case. Our lawyers stand ready to listen to any question you may have. Click here to speak to a lawyer for free.