Date of Separation and What PA Courts Consider During a Divorce

In many cases, divorcing couples don’t realize that the exact date of separation may be crucial within the divorce process.

When I meet clients who are seeking a divorce, they often casually tell me that their marriage “really” ended months or years earlier, they just stayed married legally. They’ve typically chosen to uphold their legal union for fear of hurting their children, or due to financial dependencies. But it's key in determining the legal date of separation.

At what point do Pennsylvania divorce courts consider the date of separation?

In Pennsylvania, the 1980 Divorce Code presumes that the latest date of separation is the date on which the first legal step in the divorce process is taken and the complaint is served. The court does recognize though, that this is not always the case. It is termed “separate and apart” - the date couples cease cohabitation – whether they go on living in the same residence or not. This makes it possible for there to be a separation date earlier than the service of the divorce complaint.

The problem remains that couples often disagree on when they intended to end the marriage. Instead of being tied to legal action, the intention is typically tied to emotion- an emotion each spouse rarely experiences at the same time.

What are ways to prove the separation date in a marriage?

A claimed date of separation must be proven by evidence that shows a manifested, communicated, and independent intent to dissolve the marriage. As a family law attorney, there are some basic things to consider when seeking to establish a date of legal separation:

Marital bed – Spouses who emotionally separate before they legally separate typically remain living together. However, they may have stopped sharing a marital bed. This can be a key indicator of intent to end the union.

Wedding bands – The wedding band is a universal symbol of love and marriage. Removal of the wedding bands is also a pretty universal symbol that a marriage is ending.

Joint finances – Even couples who live together prior to being married typically do not merge finances until after the wedding. As a result, separating the finances can serve as proof of intent to divorce. Submitting tax returns separately can also serve as evidence of the date of separation.

Insurance policies – Similarly, couples cannot be on the same insurance policy until officially married. This is why dissolving joint insurance policies can be a key indicator of intent to dissolve a marriage.

A party’s conduct – While a bit less concrete than the above examples, you can examine a party’s behavior to support the date of separation claims. If one or both spouses acted in a way that indicated intent to end the marriage, this can be used as evidence.

Clear communication of intent to separate – Whether legal action was taken or not, if there is evidence that one spouse clearly communicated their intent to separate, this can be used to prove a particular date of separation. This has become easier to prove with advanced technologies and the likelihood that spouses would discuss this via email and/or text. This communication can also extend outside of the couple in question. If one spouse told a family member of their intent to separate, that exchange can be used as evidence, too.

Celebrating holidays together – If one spouse claims their date of separation to be, for example, November 12th of any year, and that following Thanksgiving and Christmas was the first year the family spent the holidays apart, that can be used as evidence to support their claim- especially if all holidays thereafter were also celebrated separately.

Pictures together - If one spouse claims a particular date of separation, and the other claims the marriage continued after that date, the latter spouse can use any pictures that may have been taken after the date in question as evidence to support their claim.

Updated wills – Removal of one spouse from the other’s will is a way to prove a particular date of separation and intent to end the marriage.

New girlfriend or boyfriend – If either or both parties begin dating someone new and including them in family activities, this can be used to prove intent and recognition that the marriage was over.

Why does the date of separation in marriage matter?

Unless you are a family law attorney, you are likely wondering why the date of separation even matters so much. This is an understandable question, if spouses are agreeing to separate now, why dredge up the past?

The fact is, however, that the date of separation is extremely important in divorce cases. It’s a frame of reference for determining what is in, and what is out of the marital pot. Any assets acquired by either spouse post-separation can be left out of the marital pot. For example, 401K contributions after separation are non-marital, and thus would not be part of the pot to be divided during divorce.

Once money and assets are in play, it becomes easier to see why spouses may rush to claim dates of separation. Conversely, it can be a very tedious, emotional, and expensive exercise to prove the date of separation. If the date of separation is in dispute by only a few months, it is important you work with a family lawyer to conduct a cost-benefit analysis of whether it makes sense to make the date of separation an item in a dispute.

In all cases, family lawyers should work with clients to flesh out the case, understand their client’s unique situation, and feelings, and guide them toward the best decision concerning how to approach their split.

Call the family law attorneys here at High Swartz. We'll be happy to help you nail down that date.

Ever Wonder About the Difference Between a Lawyer vs. Attorney?

When it comes to law firms and legal representation, is there a difference when selecting a lawyer vs. attorney? If you've been looking for a lawyer or attorney near you, chances are you'll view those terms as interchangeable. But you'd be wrong because there is an actual difference.

All attorneys are lawyers, but not all lawyers are attorneys. Lawyers graduate from law school. Attorneys graduate from law school but pass the bar examination and become a member of a state bar association. Passing the bar test confers the legal right for a law school graduate to practice professionally.

The bottom line between a lawyer vs. an attorney?

An attorney can practice law in a courtroom, whereas a lawyer cannot do so without potential legal ramifications.

What is a Lawyer?

A lawyer learns and trains about the law and receives a Juris Doctor (JD) degree. That said, they may decide not to practice law, choosing to provide legal advice only without the need for a court proceeding. Lawyers may serve as consultants or advisors.

In many cases, lawyers select a specialized field where they advise clients. So, you can speak with a lawyer about that area of specialty, again without the need for a court proceeding:

A key distinction relating to a lawyer vs. an attorney is that to practice law, provide legal advice, and appear in court, they must pass the bar examination. An unlicensed lawyer cannot give legal advice and may be subject to criminal charges and legal actions.

Lawyers can work in law offices under a licensed attorney or as part of training for learning purposes.

What is an Attorney?

Attorneys (shortened from attorneys at law) must pass the bar exam, which allows them to practice law in court. Attorneys can also participate in other legal proceedings while offering legal advice to clients.

By becoming a bar association member, an attorney must comply with rules of professional conduct and a code of ethics to practice in court. Attorneys at law act as court practitioners licensed by a state to defend a client or prosecute individuals. Again, the critical distinction of a lawyer vs. an attorney is practicing in a court of law.

Attorneys can advise and represent you in court on matters like these:

Other Terms Associated with Lawyer vs. Attorney

If you're beginning to understand the difference between a lawyer vs. an attorney, that's great. But let's throw some more confusion into the equation.

Although lawyers and attorneys represent the most common terms associated with law offices, other words relate to the legal profession. Each has its distinct meaning.

Solicitor: Solicitors practice law in the United Kingdom and other countries. They practice law in administrative and client-facing settings primarily.

Barrister: Another term relating to the United Kingdom and other parts of the world, a barrister represents clients in court generally involving complex cases. Solicitors act as intermediaries to barristers.

Esquire: This term is an honorary title for lawyers passing the bar exam and holding a license in a state's bar association. It's effectively the equivalent of a Dr. or Ph.D. in other professions.

Advocate: An advocate is used interchangeably with lawyers and attorneys.

Counsel: Often used interchangeably with lawyer or attorney, counsel refers to someone who gives legal advice. A counselor trains in the law and typically work in-house for an organization or corporation.

So Do You Need a Lawyer vs. an Attorney? Just Talk to Our Law Firm!

If you're still confused about lawyers vs. attorneys, don't worry. Just give our law offices in Doylestown and Norristown a call. We'll provide professional, highly-respected legal counsel regardless of your issue. In addition, our broad array of legal services ensures you'll get the attention you need to deliver the best legal outcome.

Whether your particular case requires legal advice or a court appearance, we have you covered as one of the best law firms in the greater Philadelphia area.

Can Catholics Get a Prenuptial Agreement?

A Catholic prenuptial agreement is commonly viewed as planning for divorce before a marriage even begins in the Catholic Church.

The mere mention of the word “prenup” can incite a gasp and an inquisitive raise of the eyebrow, especially if you're talking about a Catholic prenuptial agreement. However, prenuptial agreements are not necessarily executed with an eye to an exit plan, but rather a marriage based on communication about finances to avoid problems. Talking with a family lawyer attorney about your plan is the first step anyone interested in a prenup, Catholic or not, should consider.

It is widely known that arguments about money are common in marriages. When couples meet at the end of the aisle they each may have brought with them varying levels of debt and financial responsibilities. Once those bank accounts combine, how much each spouse brings in and how much they spend, and what they spend it on, may become excruciatingly clear. Couples who don’t understand each other’s fiscal personality and haven’t discussed how to divvy up debts, bills and spending money are in for some tough conversations.

There is nothing wrong with couples discussing and documenting their financial plans. In fact, it would be foolish not to discuss it; entering the marriage with a clear understanding of each other’s financial goals, and of any bad habits, prevents surprises and possible disappointment down the road. 

When you consider parties who may raise an eyebrow at a prenup, the Catholic Church naturally comes to mind as they remain honorably committed to the union of marriage. However, the Church also recognizes the importance of smart marriage preparation, and it is possible – and may be wise – for Catholic couples to have a Catholic Prenuptial Agreement drafted by a family lawyer attorney.

So, can Catholics get a prenuptial agreement?

Where Pre-Cana classes can start the conversation around financial planning, a prenuptial agreement can document the decisions made without creating an expectation of divorce. The astute family lawyer attorney can assess couples’ unique needs and concerns, including those that are religious, and take the right measures in creating pre-marital agreements. A Catholic prenuptial agreement will be drafted without mentioning “divorce”, and not subject to disapproval by the Church.

This “Catholic Prenuptial Agreements” memorializes in writing a couple’s financial plans, addressing their liabilities and assets as they embark on their marriage commitment. A lack of communication can lead to heartache and too often a ruined marriage. Preemptive measures like Pre-Cana classes, other counseling methods, and supporting documentation such as prenuptial agreements can help to strengthen unions, rather than set them up to fail.

What financial matters should be addressed before marriage?

As family lawyer attorneys we get asked this question a lot. Here's a quick rundown, but these are anything but quick fixes. These are not fool-proof tips to a successful marriage, but they could help bring a sense of understanding to an often difficult subject.

  1. Pay off separate debt. Separate debt can sometimes include personal car loans, credit cards, student loans, or anything that occurred before the marriage takes place. 
  2. Clean up a poor credit history. This could be the most difficult matter to undertake. In many cases increasing a credit score can take months, even years. Beware of companies that state they can fix your credit score fast. 
  3. Preserve some separate money. This often goes without saying. A separate banking or checking account should continue to be funded for personal expenses. Most often, couples come to the table with pre-existing accounts.
  4. Identify how to manage the couple’s pooled funds. What is the best way to pay for family expenses? Is a joint checking account the answer? Are credit cards an option? There should be transparency and discussion beforehand on what constitutes a family expense, and the rules should be strictly followed. 

To learn more, contact the Family Law Attorneys here at High Swartz. We've handled many types of pre-marital agreements, including Catholic prenuptial agreements, and can steer you in the right direction...towards the altar.

The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

 

High Swartz has been named a Tier 1 National Law firm for Land Use & Zoning Law by U.S. News – Best Lawyers® “Best Law Firms” in 2022

High Swartz is pleased to announce it has received another "Best Law Firm" nod and has also been named a Tier 1 Philadelphia Area “Best Law Firm” in five practice areas.

Of note is the rise of the firm's Land Use & Zoning Law ranking from National Tier 2 in 2021 to National Tier 1 in 2022. Workers' Compensation Law - Claimants also rose from a Metropolitan Philadelphia Tier 2 to Tier 1. To achieve a "Best Law Firm" ranking, a firm must have at least one lawyer included on The Best Lawyers in America© list. For 2022, 14 High Swartz attorneys were named among Best Lawyers and the Best Lawyers: Ones to Watch List.

The "Best Law Firms" rankings are based on a combination of client feedback, information provided on the Law Firm Survey, the Law Firm Leaders Survey, and Best Lawyers peer review.

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. Almost 108,000 industry leading lawyers are eligible to vote (from around the world), and we have received over 13 million evaluations on the legal abilities of other lawyers based on their specific practice areas around the world. For the 2021 Edition of The Best Lawyers in America©, 9.4 million votes were analyzed, which resulted in more than 67,000 leading lawyers being included in the new edition. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honor.

When you're looking for attorneys near you in the Greater Philadelphia, Bucks County, and Montgomery County areas, get in touch with our law office. National and local resources consistently cite our law firm and its lawyers and attorneys. Talk to best -- High Swartz.

What are Consentable Lines in Pennsylvania?

Proving Consentable Lines and Property Lines in Pennsylvania can be a difficult process. 

When an actual, de facto boundary between two adjoining properties exists apart from the legal descriptions of both properties by deed, Pennsylvania Law provides that property lines which are respected and mutually acquiesced to for a statutory prescribed period of twenty-one (21) years become the legal boundary between the properties. Talk to a real estate lawyer near you for questions.

Pennsylvania Law disfavors hyper-technical, rigid determinations of real property rights where the facts and circumstances warrant a departure from the broader rules of general application. The Pennsylvania Supreme Court has recognized the doctrine of “Consentable Lines” to settle issues concerning mistakes as to the boundary between adjoining properties.

Sometimes referred to as “boundary by consent and acquiescence,” the Doctrine of Consentable Lines permits the passing of title to property where adjoining landowners establish a mutually respected boundary either by mistake and inadvertence or dispute and compromise, each landowner claims and occupies the land on his side of the boundary as his own, and the occupation continues uninterrupted for a period of twenty-one (21) years. This twenty-one year requisite can include “tacking” of years from one owner to his successor in order to aggregate to a twenty-one year sum.

How do you prove a Consentable Line in Pennsylvania?

There are two ways in which one may prove a consentable line: by dispute and compromise or by recognition and acquiescence. There are three requirements for the establishment of a binding consentable line by dispute and compromise:

  1. A dispute with regard to the location of a common boundary line,
  2. The establishment of a line in compromise of a dispute,
  3. The consent of both parties to that line and the giving up of their respective claims which are inconsistent therewith.

The requirements for establishing a binding consentable line by recognition and acquiescence are:

  1. A finding that each party has claimed the land on their side of the line as their own, and
  2. A finding that this occupation has occurred for the statutory period of 21 years.

The doctrine of boundary by acquiescence (i.e., consentable lines), functions as a rule of repose to quiet title and discourage vexatious litigation. The determination of what constitutes actual possession of property, for purposes of establishing a binding consentable line under the recognition and acquiescence method, depends on the facts of each case and the character of the premise.

If you're facing an issue with consentable lines, reach out to a real estate attorney at our local law firm.

Compromising on a Property Line

There is, however, no requirement that activities be conducted on the entire property in order for a party to prevail under the doctrine. The establishment of a consentable boundary line is always a matter of compromise, in which each party supposes he or she gives up for the sake of peace something for which in strict justice he or she is entitled.

There is an express mutual abandonment of their former rights, upon an agreement, that whether they be good or whether they be bad neither is to recur to them on any pretense whatever or claim anything that he or she does not draw from the terms of the agreement.

A consentable line is not created if the parties, from misapprehension, adjust their fences and exercise acts of ownership, in conformity with a line which turns out not to be the true boundary, or if permission is ignorantly given to place a fence on the land of a party. Whether proving a consentable line by dispute and compromise or by recognition and acquiescence, it is not necessary that the boundary line be substantial. A real estate lawyer can determine which route to take.

  • Based upon a rule of repose sometimes known as the doctrine of consentable line, the existence of a boundary line by acquiescence may be proved either by dispute and compromise between the parties or recognition and acquiescence by one party of the right and title of the other.
  • Acquiescence, in the context of a dispute over real property, denotes passive conduct on the part of the lawful owner consisting of failure on his part to assert his paramount rights or interests against the hostile claims of the adverse user.
  • A determination of consentable boundary line by acquiescence requires a finding:
    1. that each party has claimed the land on his side of the line as his own, and
    2. that he or she has occupied the land on his side of the line for a continuous period of 21 years.

Talk to Our Real Estate Attorneys

Because the finding of a consentable boundary line depends upon possession rather than ownership, proof of the passage of sufficient time may be shown by tacking the current claimant's tenancy to that of his predecessor; to do so, however, the claimant must show sufficient and credible proof of delivery of possession of land not within but contiguous to property described by deed of conveyance, which was previously claimed and occupied by the grantor and is taken by the grantee as successor in such interest.

Contact our law offices for any real estate litigation needs you may have. The real estate lawyers in our Montgomery County and Bucks County PA law offices are here to help.