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Pennsylvania Legal Separation Explained

SuperLawyers

 

“Separation” is often the first step toward divorce for many couples. When a married couple decides to live separately and live their lives as though they are single again, but they have not yet finalized a divorce, they are considered “separated.” But what legal effects does this have on your marital status and your divorce?

The family law attorneys at Sadek and Cooper have compiled this guide to help you understand what legal separation means for your marriage and divorce. If you need a divorce attorney in Philadelphia or the surrounding counties, contact Sadek and Cooper today for a free consultation about your divorce or separation.

Legal Separation in Divorce Proceedings

One of the most popular and simplest types of divorce is a divorce by “irretrievable breakdown.” Authorized under 23 Pa.C.S. § 3301(d), a divorce on the grounds of irretrievable breakdown allows a married couple who has been separated for at least a year to finalize a divorce with some simple court filings. The parties simply file for divorce in a Pennsylvania court, and the court will grant the divorce if neither party objects. If one party does object, the court can still grant the divorce after holding a hearing to determine if the marriage is broken. “Irretrievably broken” may sound very serious, but it simply means that the marriage cannot be fixed – and courts are often willing to grant divorces on these grounds.

Living “Separate and Apart”

The biggest prerequisite for a divorce under § 3301(d) is that the couple has lived “separately and apart for a period of at least one year.” This is the main place where legal separation comes into play in Pennsylvania family law. Here, there specific rules about what exactly it means to live “separate and apart.” 23 Pa.C.S. § 3103 defines “separate and apart” as “[c]essation of cohabitation, whether living in the same residence or not.” This means that you can be legally separated, but still live in the same house. That might require doing things like having separate bedrooms, or demonstrating that you have otherwise given up living as a couple. However, living in separate residences makes it much more clear under the law that you are indeed separated.

Date of Separation for Divorce

Determining the date of separation is also important, since you need to be separated for one year to get a divorce based on irretrievable breakdown. At the very latest, the date that you serve your spouse with divorce papers is the date that starts the one-year separation period. If you can prove you have lived apart before that, then that is fine too – the filing date is merely the latest possible date.

The date of separation is also extremely important for deciding how property is distributed during a divorce. In general, everything acquired by the married couple between the date of marriage and the date of separation is part of the “marital property,” and is divided between the spouses when they get divorced. Everything acquired before the marriage or after separation belongs to the individuals. That means that the date of separation is the cutoff date for marital property. Because of this, it is often a good idea to establish firm parameters for how to treat property and agree upon the date of separation with “separation agreements” or “postnuptial agreements.”

Legal Effects of Separation

How separation affects your legal status, and the way things work between you and your spouse may be complicated and raise questions for couples. When it comes to your particular situation, it is important to discuss your questions with an attorney to fully understand your status.

Alimony

If you are living separately and filing for divorce, you may be entitled to spousal support while the divorce is finalized. This is called “alimony pendente lite,” or alimony, “pending litigation.” While you await a finalized divorce, your spouse can be ordered to pay you money for things like food, housing, and living expenses. This is only ordered in cases where it is needed, and only for the spouse who makes less money. Talk to an attorney about what you might be entitled to for alimony pendente lite.

“Misconduct”

One of the elements in considering whether alimony is fair is the “misconduct of either of the parties during the marriage.” This means that, according to 23 Pa.C.S. § 3701(b)(14), if either party did things like cheat on their spouse or abuse their spouse, this could affect their alimony payments. The statute specifically excludes any misconduct after the date of separation – except for abuse. That means that the parties, after officially becoming separated and filing for divorce, may be allowed to seek other romantic partners without it affecting their divorce. Despite this, it is always important to check with an attorney about the legal repercussions of your actions when going through a divorce. Also note that physical abuse is never tolerated, even after separation.

Child Custody

Legal separation may also be a trigger to allow child custody proceedings to begin. As soon as the parents move to separate residences, child custody may need to be determined. This could require court proceedings, or could be settled in agreements between the parties. Since child custody is usually such a difficult stressor between parents, it is important to talk to an attorney about your case.

Separated Individuals are Still Legally Married

Finally, just because you are separated does not mean your relationship is over. In the eyes of the law, you are either “single,” “married,” or “divorced.” That means you cannot remarry while you are separated, and must get a final decree of divorce first. Additionally, there may be tax and other financial effects of your legal separation that an attorney can help you investigate. Lastly, since separation is not equal to divorce, there is still always an option to end the separation and return to your married status – which is much simpler to do from a state of separation than it is after a divorce.

Separation and Divorce Attorneys in Philadelphia

If you are considering divorce, or you and your spouse have begun to live separately, talk to an attorney. There may be ways to more quickly get a divorce, or at least more firmly establish your legal separation and its effects. For a free consultation about your divorce or separation, contact the attorneys at Sadek and Cooper today at 215-814-0395.

 

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