What it Means to be Legally Separated in Pennsylvania
When it comes to the dissolution of a marriage, Pennsylvania law recognizes the concept of legal separation by specifically addressing it in the Divorce Code. Specifically, according to 23 Pa.C.S.A. § 3103, legal separation is defined as the "cessation of cohabitation between a husband and a wife without a formal divorce." The Divorce Code does not define cohabitation. Courts have uniformly held that cohabitation requires a marital relationship coupled with an intent not to resume the marital relationship.
Separation as defined by the Code means a change in the position of the parties to the marriage from that of living together as husband and wife to living separately and apart. The parties are still married but are leading separate lives. This is often a time period for the parties to discover whether they can settle their differences and remain married or charts a different course for them to proceed towards a divorce.
During the time of separation , the spouses are considered married and all legal issues on custody, support, equitable distribution, etc. can be addressed. It is proper for a spouse to move out of the home of the other spouse and commence his/her own residence elsewhere during this time period. However, it is very appropriate for the other spouse to be aware that a separation is taking place. It is presumptively reasonable for a spouse to assume that if their spouse is sharing the same house, they wish to stay married. While "separation" does not have to be formally papered or authorized through the courts, it is in everyone’s best interest to make it known in some fashion that you intend to separate from your spouse.
Why You Might Legally Separate
- Preservation of the marriage relationship. Sometimes individuals want to separate, but they do not want to sever the legal relationship with their spouse. They anticipate that marital problems may be worked out, but getting a divorce would make reconciling more difficult in the future.
- Religious or moral objections to divorce. Some individuals do not want to divorce because of their religious or moral convictions, which are their legal right to maintain.
- Determining spousal support or smooth divorce transition. Before an individual decides to end the marriage, it is important to determine if there are any economic consequences to it. Separating can give a spouse time to determine the effect on his or her finances, or allow for the passage of time for a child support award to take affect to determine the amount of spousal support or alimony needed.
- Determining the need for divorce. If it is unclear if a spouse’s behavior warrants divorce, a separation is required to test the waters before committing to divorce.
- Avoiding a unilateral change in circumstances. When a spouse files for divorce, the court often awards temporary spousal support and/or child support. A person who does not want to pay or receive support can ask the court to impose a period of separation before the divorce becomes finalized, during which a person does not have to pay support.
Requirements for Legally Separating in PA
Section 3: Legal Requirements for Separation
In Pennsylvania, the legal requirements for separation are that (1) that the parties continue to be married and (2) that the parties live separate and apart from one another. Although there does not exist a bright-line rule as to how long parties must live separate and apart, the time after which parties are considered to be separated is typically six months. On occasion where the divorce can be uncontested, this period can be shortened with the earnings of both parties.
Obtaining a legal separation in the commonwealth is a very straightforward process. Sponsored by an individual known as the "moving party," the process is usually initiated through a motion paper known as a "complaint." In this document, the moving party files a court petition which is followed by a notice. Once the court is timely notified of the motion request, it will then proceed by entering a "Order with Request for Entry of Appearance of Counsel" order on the Divorce Docket. This order formally instructs the moving party to take the action described in the complaint and to follow the mandate as issued by law.
The Legal and Financial Aspects of Separation
While Pennsylvania does not recognize "Legal Separation" as a formal legal status, there are financial implications for a couple who is legally separated.
Legal separation gives married partners a method to resolve issues related to children, support, and/or distribution of assets and debts prior to or during litigation to file for divorce. In Pennsylvania, there is no waiting period before filing a divorce action after legal separation; meaning that every day spent apart from your spouse is a day that you will spend on the path towards divorce, possibly at a cost. However, the costs may be worth the benefits of a legal separation, especially if there are children involved.
Prior to separating, decisions about:
A spouse will continue to have financial responsibility during the marriage for the above financial obligations. After the date of separation, unless there is a new agreement between the parties, all financial obligation becomes the responsibility of the person incurring the expense. For instance, if the parties own a home, the spouse who lives in the home after the date of separation is responsible for all expenses associated with home ownership. So, if you have to move, you will need to pay for a place to live and all associated expenses.
Support is intended to provide the party with an opportunity to be supported so that they can be self-supporting in the future. Often, this means that child and/or spousal support is temporary until the party receiving the support can get vocational training, a job with a livable wage, and/or independent means that allow them to provide for themselves. Support of children ends once the children reach the age of majority (16 in Pennsylvania, albeit with some exceptions, such as children with disabilities). Spousal support ends one day before filing for divorce.
When deciding whether to separate, remember that there is no saving time or money if you simply separate and don’t pursue a divorce immediately. Without a divorce action pending, issues like equitable distribution and claims against a spouse’s income, such as alimony and child support, are not legally enforceable.
Additionally, once you are married, it is likely that you and your spouse have at least some joint debt, such as mortgage loans, credit cards, student loans, etc. Depending on your individual financial situation, just separating might not be enough to account for the cost of living on your own.
In some situations, when one party is the sole wage earner and the other does not have the ability to sustain themselves in a new living arrangement, you may be better off remaining married from a financial perspective, at least until you can get the necessary training to obtain employment that will allow you to support yourself.
If you do decide to separate, be sure you have a plan: where will you live, how will you pay the bills, how can you meet your needs?
Custody and Supporting Your Children in Separation
Those couples who currently have children and who are legally separated often make arrangements between themselves regarding custody of the child(ren). However, these arrangements are not legally binding. They may be in writing or orally agreed upon; however, they are not enforceable unless determined by a judge. When a couple becomes legally separated, the Judge has the following options regarding Custody of children: – allow shared custody; – award custody to one parent; or – award custody to both parents jointly (Joint Custody). Many parents opt to agree themselves on a shared custody arrangement, however the Court will examine that agreement and ensure that it is in the best interests of the child . Parents who are legally separated should create a plan and submit it to their family law attorney who can explain your options, assist you in drafting the agreement and can walk you through the court process. In Pennsylvania, parents who are legally separated may or may not agree on child support obligations. Unfortunately, Child Support obligations may fall into a grey area as the law varies from state to state and the Child Support Guidelines vary from county to county. Usually these issues are resolved with the help of an attorney and the parties themselves. However, when unable to reach an agreement, parents may apply for and be ordered to pay or receive Child Support via the family court system.
Steps to Legally Separate
It is important to understand that the initiation of a legal separation requires the filing of some documents with the Court. This is because the separation is necessary to file for and obtain a divorce, and the ultimate objective of filing for divorce requires you to establish ‘grounds’ for the action, as well as the Public Policy of the Commonwealth of Pennsylvania. Pennsylvania Rules of Civil Procedure, Rule 1920 sets forth the general rules for actions for Divorce or Annulment.
The Rules specify that an action for Divorce is commenced by the filing of a written Divorce Complaint in the office of the Prothonotary of the Court of Common Pleas. If you are pursuing a Legal Separation, your attorney will file the Complaint with the office of the Prothonotary. The Complaint must include the specific ground(s) you are asserting for the divorce. The most common grounds that are assigned are the grounds for "Irretrievable Breakdown" of the marriage as set forth under 23 Pa.C.S. 3301 (a)(1), or a separation for at least one year under the provisions of 23 Pa.C.S. 3301(c). Under most circumstances, if you have been living separate and apart from your spouse for 12 months or more, that is grounds for divorce, and is the basis for your complaint.
Your attorney may also file a ‘Certificate of Grounds for Divorce’. The Certificate is merely a checklist, which lists the requirements to obtain a final Divorce Decree. Your attorney files the Certificate to show the Court that all of the requirements for a final Decree have been met. In the event that a final Decree is not able to be entered, the Certificate is used to provide the reasons why it cannot be entered.
Pennsylvania also allows you and your spouse to file a civil lawsuit to formally separate without obtaining a Divorce (or annulment). The civil lawsuit filed with the Court is called a Complaint for Declaratory Judgment. In the Complaint, you and your spouse must request that the Court declare you both to be married (legally married) or unmarried, and declare whether or not a marriage exists. Although it sounds simple, it is important to consult with your attorney before filing the Complaint.
In the Complaint, you and your spouse should provide the factual support for your request that the Court declare you legally married or unmarried. You can set forth any number of dates citing when the parties were married and when they separated. However, it is most likely that the only information needed is the date of marriage, the alleged separation date, and the applicable divorce ground. The Divorce ground you cite on your Complaint should be the same as the one(s) listed in your Divorce Complaint. An experienced Pennsylvania divorce attorney can help you decide on other important issues, such as which issues should you include with the Complaint and whether any of those issues require separate agreements.
Such reasons include but are not limited to:
Unlike the proceedings set forth in the Pennsylvania Divorce Code, once you and your spouse file a Complaint for Declaratory Judgment. All of the parties will need to attend a hearing. If you filed the Complaint to determine if you and your spouse should be considered married or not, the Judge may make the determination at the end of the hearing or after considering the evidence presented during the hearing.
How to Navigate Legal Separation Issues
Before entering into a separation agreement in Pennsylvania, it is important to first evaluate some emotional and legal considerations. A legal separation in Pennsylvania may be right for your family, but you should understand all that it may entail before making this life changing decision.
The legal considerations involve looking at the contract or agreement that the parties will be entering into and seeing if the parties will be able to fulfill their legal obligations. Will you be paying alimony? Will you be paying child support? Will you be agreeing to any custody or support terms with regards to your children? If you have a 401(k) will it be divided? If you live in a home together with the other spouse, are you going to be moving out of the marital residence? Will it be divided? Do you have cars that need to be divided? How are you going to pay for the costs associated with the separation as you either go on your own or as you sell the house? What about the costs of health insurance? Continuing insurance through COBRA can be quite expensive and what if the other spouse has better insurance or pays less for better coverage? What will the costs be to see a therapist or to recover from the separation? You should consider your financial position on a holistic level, not just one that is contained to the boundary lines of the separation agreement.
The emotional considerations of a separation may far outweigh the legal ones, so do not discount these when entering into a separation agreement. Do you love your wife? Do you love your husband? Can you live together now or after the first months of separation are completed? Does your pastor think you should not proceed with your separation? Is your family a strong influence in your life to assist with your decision? What about friends? Do your friends tell you that you will be okay no matter what the situation is but do they believe it? Do your kids think that it is in their best interests? Do they want it or will they be okay with just one mom / dad in their life? What do you have to gain by separating? What do you have to lose? Are you mentally prepared to put everything on hold while going through a separation? It may sound cliché but slow and steady wins the race.
Where to Seek Legal Help
When beginning the process of legal separation, you may feel overwhelmed with information and unsure of where to turn for help. Fortunately, Pennsylvania provides various resources for individuals navigating this complex process. In this section, we will guide you through finding legal assistance and additional resources that can help you respond appropriately to your spouse’s legal filings and complete your response.
First, it is essential to retain the services of an experienced family lawyer in Pennsylvania. A highly qualified attorney will ensure that you are informed of your legal rights, as well as your rights to specific assets, custody of children, and any other issues that may arise during a legal separation. Your attorney will also brainstorm possible solutions to the problems you are facing and help you choose the best course of action to serve your needs moving forward. It is crucial to be proactive in retaining legal assistance and not wait until after your spouse files a petition to consult with an attorney to help protect your interests throughout the process.
If retaining an attorney is beyond your budget , you can access several community resources that provide assistance to those with limited incomes in Pennsylvania. Community Legal Services of Philadelphia offers free legal services to eligible individuals, including many pro bono services for both family and employment law. The Philadelphia Bar Association also connects the general public with the services of a local pro bono attorney or law clinic. The Pennsylvania Bar Association provides general legal resource guides on its website to help you learn more about your legal rights.
If you are currently experiencing a legal separation, the most important step is to consult with a family law attorney in Pennsylvania as soon as possible. The attorney will help ensure that you are protected, and that all of your legal rights are guaranteed – now and in the future.