Many married couples realize that they cannot continue living together so they decide to get a divorce. Divorce is unfortunately all too common these days. Some people realize that they want to live separate and apart from their spouse, but they do not want to proceed with a divorce. These people believe that they can get a legal separation through the court; however, in Pennsylvania this is simply not true.
The term “divorce” means a divorce from the bonds of matrimony. Simply put, a divorce is a legal end to the marriage when the Court issues a decree in divorce. On the other hand, a married couple can choose to live “separate and apart”. This means that there is an end to cohabitation, but the couple continues to be married to one another.
There is no legal “separation” in Pennsylvania, i.e. there is no formal process or court order required to be considered “separated” in Pennsylvania.
What is a Legal Separation?
Many states allow for a “legal separation.” This is a process, similar to divorce, but the parties remain married but separated. A legal separation does not end a marriage. Instead, the husband and wife live separate lives, but there is a court order in place that defines issues such as the division of debt or marital assets, child custody and visitation schedules, child support, spousal support, and other responsibilities of the parties. However, Pennsylvania is not one of these states.
What is a Divorce?
A divorce is the end to a marriage. The Court will enter a court order divorcing the husband and wife. During the divorce process, the parties also will obtain a court order that defines the same issues that the court ordered separation will govern, i.e. division of debts or assets, child custody and support. Pennsylvania does allow for divorce including fault and no-fault divorces.
What is the Difference Between a Legal Separation and Divorce?
There is only one major difference, when parties are legally separated they are still married but in a divorce, the husband and wife cease to be married.
What Does It Mean To Live Separate and Apart?
Under Section 3103 of the Pennsylvania Divorce Code, the term “separate and apart” means a cessation of cohabitation, whether living in the same residence or not. While it seems counter-intuitive that a married couple can live separate and apart in the same home, it is quite common. Often, one spouse is unable to get the courage to leave the home or to force the other spouse out of the home. Or, it may be financially difficult for each spouse to maintain separate households. Nevertheless, the couple may continue living separate and apart in the same home if it is established that they maintain separate bedrooms, meals are eaten apart from one another, entertaining as a couple is no longer occurring, and sexual relations have ended. This concept arose from a Pennsylvania Superior Court decision in 1984 in which the court held that “living in quarters separated physically and without sharing the incidence and attributes customarily attached to the marital relationship” are enough to constitute grounds for divorce.
No one factor is conclusive. What is important is the existence of “separate lives” and not “separate roofs”. If the parties engage in sexual relations, this does not by itself indicate that the parties resumed the marital relationship.
If a complaint in divorce is filed by one party, a presumption arises that the parties are living separate and apart not later than the date the complaint was served on the other party. This means that it shall be presumed that the parties are separated at least as of the date the complaint was filed and served.
What are the Advantages of a Legal Separation?
Oftentimes, couples do not want to proceed with a divorce because they believe that separating will give them time to reflect on the marriage. Many people believe that the time apart will allow them to decide if they really want to be with their spouse and to allow for a chance at reconciliation. Secondly, there may financial benefits too. For example, married but separated spouses are still married so they can retain the medical benefits that they have. There may be tax advantages and social security benefits too. Thirdly, some people may have religious beliefs that prohibit divorce. These people can start a new life with a legal separation, but they are not sacrificing their religious beliefs in order to do so. Finally, military spouses who remain married for 10 years can then receive military benefits.
Is Divorce the Only Option in Pennsylvania?
No. While there is no “legal separation” in Pennsylvania, a husband and wife can still live separate and apart without a court order. However, if husband and wife do choose to live separate and apart, they should enter into a separation agreement since the Court will not intervene.
Separation Agreements in PA
Even though there is no legal separation in Pennsylvania, a husband and wife who want to live separate and apart should consider a separation agreement. A separation agreement is a negotiated contract that can define with specificity the rights and responsibilities of each spouse while they are separated.
These agreements involve a lot of legal issues so separating spouses should retain a divorce lawyer to help them create a separation agreement. Often, these separation agreements can then serve as the basis for a final settlement agreement for the divorce. A Court can enforce a separation agreement just like any other contract, so it is binding on each party. The following is a few examples of what a good separation agreement will cover:
- Division of Property: A big issue that often arises when a couple has decided to live separate and apart is whether they will live in a separate household. If the decision is made to live in a separate household, the couple should discuss how each of them will pay for their respective living situations. For example, if one spouse moves out of the marital home, will that spouse continue contributing to the mortgage, interest, and taxes on the marital home even though he or she will have their own living expenses? The parties must also determine who gets the personal property, i.e. household belongings, cars, etc. These are just some of the property issues that must be discussed and addressed in a separation agreement. Pennsylvania divorce lawyers are important in this regard because they can help their client understand the issues and the legal impact of decisions so the lawyer can then incorporate these decisions in the agreement.
- Alimony, APL, and Spousal Support: In Pennsylvania, a spouse may be entitled to Alimony Pendente Lite if the parties have commenced the divorce process or spousal support if they have not commenced the divorce process. They cannot get both. There are some important distinctions between APL and spousal support and a divorce lawyer can help the client understand those distinctions. A divorce lawyer can also help the client determine an appropriate amount of APL or spousal support based on the incomes of the parties and other variables.
- Child Custody and Visitation: Parties who get divorced and who have young children should determine who gets physical and legal custody of the children. Usually the parties to a divorce will create a schedule for custody and visitation. Parties who are separating should also consider having a similar agreement. The schedule for child custody and visitation can be incorporated into a separation agreement that can include holidays, birthdays, and vacations.
Is Separation Relevant To A Divorce Proceeding in PA?
In order to receive a decree in divorce from the Court, there must be “grounds for divorce”. Living separate and apart is a necessary element of a unilateral no fault divorce under Section 3301(d) of the Pennsylvania Divorce Code. In these cases, the spouse who wants the divorce must file a divorce complaint and he or she must allege an “irretrievable breakdown” of the marriage. When the spouse can prove that the parties have continuously lived separate and apart for at least one-year, the Court may grant the decree in divorce even without the consent of the other spouse.
Unilateral Divorce – Separate And Apart
If a spouse files a divorce complaint and alleges an irretrievable breakdown of the marriage under Pennsylvania law, that spouse can allege the parties have lived separate and apart since a specific date. If the other spouse does not believe that the marriage is irretrievably broken or if he or she does not believe the parties have lived separate and apart, then the spouse can file a counter-affidavit. When a counter-affidavit is filed, the matter will be decided by the Court after an evidentiary hearing. The spouses should each have an experienced divorce lawyer present their case.
Learn More About Divorce & Separation in PA
If you are married and you are considering a divorce or a separation in Pennsylvania, you should consult with a divorce lawyer before taking any steps. You must understand your legal rights so that you take the right steps. Please contact The Martin Law Firm, P.C. today for a free case evaluation. Our number is 215-646-3980.