Depending on your date of separation, the value of your marital estate and any award of alimony could be vastly different.
In Pennsylvania, the date that you are deemed to be separated from your spouse, is an important date in your divorce matter for a number of reasons including when the divorce can move forward in the court system and how your marital assets and debts are valued.. It is unsurprising that this date can be disputed and highly emotional.
Why does the date of separation matter?
There are two primary reasons why the date of separation is important in as divorce.
No Fault Divorce. There are two types of “no-fault” divorces in Pennsylvania. The first type is where you and your spouse consent to the divorce moving forward and execute paperwork stating that is their intent. The second type of “no-fault” divorce is often called a “one year separation” divorce. In a “one year separation” divorce, the party pursuing the divorce (you or your spouse) must be able to establish that you two have lived “separate and apart” for a period of one (1) year before the divorce case can be moved forward.
Marital Property. In Pennsylvania, all of the assets and debts that you acquired from the date you and your spouse were married until the date that you separated, regardless of how the asset is titled, are marital property subject to division in the divorce. There are some exceptions to this rule, including gifts and inheritances, but generally, everything acquired during the marriage goes into the pot, so to speak, to be divided up in a fair manner.
The date that you separate from your spouse is also the date that you stop acquiring marital assets and debts together. In some cases, the value of the marital estate can be drastically different depending on when the parties were officially separated.
For example, if you, after you separated, continued to add to your retirement funds each paycheck, those funds are your separate property, not subject to division by the court in your divorce. The date that you separated would be important to determine which of those retirement contributions will be shared with your spouse, and which will not.
How is the date of separation established?
Section 3103 of the PA Divorce Code (found at 23 Pa.C.S. 3103) tells us that you and your spouse have lived “separate and apart” when there has been a “cessation of cohabitation, whether living in the same residence or not.”
The Courts in our state have spent a lot of time examining what qualifies as a “cessation of cohabitation” and what does not. One overarching requirement has emerged from those court cases which is that one spouse must intend to dissolve the marriage (i.e. get a divorce) and must clearly communicate that to the other spouse.
One of the clearest indications that the parties are living “separate and apart” is when one of the parties moves out and makes it clear that they are not returning to the joint home.
What if the couple continues to live in the same house during divorce proceedings?
Under Section 3103, filing paperwork with the court to start a divorce (called the Divorce Complaint) and then providing that paperwork to your spouse creates a presumption that the parties live “separate and apart.” The date that your spouse is on formal notice that you are seeking a divorce through the court system is the date that you are separated.
For some couples, neither of the above scenarios apply: neither party has moved out of the shared home and neither party has filed and served the Divorce Complaint. In those situations, the analysis of when the parties separated can be trickier and less clear. The Court will look at the facts each party puts forward to decide whether the parties ever established a date of separation and, if so, when that date was. For an examination of some of the facts that the Court might consider, review this summary by High Swartz Family Law attorney Missy Boyd..
Establishing a clear date of separation is incredibly important to your case. If you are thinking about a divorce, consult with an attorney before taking any formal steps to ensure that you are correctly establishing your date of separation and understand the implications of that date.
Visit the firm’s Family Law page here.
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.