Defining Date of Separation for Pennsylvania Divorce
When couples or individuals start thinking about divorce, many questions will inevitably be discussed and Googled; from filing fees to how long it will take to get divorced, there are many confusing aspects. A fundamental issue that plays a major role throughout the divorce process is defining date of separation and understanding what it means.
Un-defining legal separation
Firstly, those considering divorce should filter out the notion of “legal separation”. This does not exist in Pennsylvania. Couples are not divorced until the entry of the divorce decree – until that time, there is still a marriage. This could be a misinterpretation of the two year separation under 3301(d) which is a factor for contested divorces. Regardless, date of separation can play a critical part during equitable distribution.
What is date of separation
Defining date of separation in Pennsylvania is multi-faceted. Some may assume that one party has to have moved out in order to be considered separated; however, this may not always be the case. Because of children and/or finances, a spouse may need to stay under the same roof. The court will consider this arrangement separation if certain conditions are met, most relating to defining the time when the couple stopped behaving like a married couple.
The court relies on the below when defining date of separation:
- Living separate and apart: cessation of cohabitation, in the same residence or otherwise;
- Filing and service of a divorce complaint: the Court deems the separation began no later than service of the complaint;
- Couple no longer acts as husband and wife;
- A spouse’s intent to end the marriage is clearly manifested and communicated to the other spouse. Sinha v. Sinha, 526 A.2d 765 (Pa. 1987)
Defining cohabitation
Cohabitation is defined as, “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). Understanding when this arrangement ceased is another consideration of the court. Generally, couples have a shared understanding of when this changed.
Defining intent
Defining intent can play a major role in cases where defining date of separation is difficult or contested. Considerations factored into the determination include:
- How much time the couple spends at the marital residence
- Sleeping arrangements and sharing meals together
- Sharing in outings, vacations to benefit themselves or children
- Whether or not the appearance of a functioning marriage was for the child’s sake only
- Whether the spouses were living separate lives
- Whether the parties had sexual relations
Frey v Frey, 821 A.2d 623 (Pa. Super. 2003). These considerations are viewed comprehensively, with many contributing to the overall understanding of the dissolution of the marriage.
What are the implications
Not knowing date of separation could affect the outcome of the divorce. This often appears when couples begin discussing division of assets. Large purchases of assets or liquidation of shared assets can be misappropriated during equitable distribution if there is a discrepancy in defining date of separation.
Having an experienced divorce attorney can help determine when and how separation began as well as how it will affect your case. Other considerations include distribution of retirement benefits and other deferred compensation plans which can be confusing. The Law Offices of Michael Kuldiner, P.C. has divorce attorneys who specialize in divorce-finance matters.
To schedule a consultation with a Doylestown divorce lawyer, call (215) 693-6191 today. Or complete the online inquiry form and a member of our team will contact you to schedule an appointment.
