Technically speaking, there’s no such thing as a “legal separation” under Pennsylvania law. For legal purposes, separation means that one spouse informs the other that he or she no longer desires to remain married. A spouse can inform the other through one of several means: by filing a divorce complaint, by vacating the marital residence without intending to return, or by informing the other spouse of the end of the marriage verbally, in writing, or by actions such as ceasing marital relations and inhabiting a separate part of their marital residence.
Even though Pennsylvania doesn’t really provide for “legal separation“, the factual date of separation in a marriage can affect what makes up marital assets and debts as well as the timing of when a divorce decree can be finalized without the other spouse’s consent. The date of separation is the date upon which it is determined that the parties are living “separate and apart”. 23 Pa.C.S.A. § 3103 defines “separate and apart” as “the cessation of cohabitation, whether living in the same residence or not. In the event a complaint in divorce is filed and served, it shall be presumed that the parties commenced to live separate and apart not later than the date that the complaint was served”.
Once spouses get to the point of living physically separate, they typically can agree on the date of separation for purposes of Pennsylvania law. In those cases, however, where the spouses reside in the same residence and have not filed a divorce complaint, the court may still determine that the parties live separate and apart. In order to do this, courts will look at some of the following factors on a case-by-case basis to determine whether spouses have been living “separate and apart”:
The “spouses’ intent to dissolve the marital relationship must be clearly manifested and communicated to the other spouse, before the spouses can begin to live ‘separate and apart’”. Sinha v. Sinha, 526 A.2d 765 (Pa. 1987). Some factors which have been considered under Pennsylvania law in determining the parties’ intent have been: 1. How much time each party spends/spent at the marital residence; 2. Whether the parties sleep/slept in the same room; 3. Whether the parties eat/ate meals together; 4. Whether or not the parties take/took vacations and outings together and whether or not those outings are/were solely for their children’s benefit; 5. Whether or not the parties give/gave the appearance that everything is/was fine for their children’s sake; 6. Whether the parties live/lived separate lives; and 7. Whether the parties have/had sexual relations. Frey v Frey, 821 A.2d 623 (Pa. Super. 2003). See also Mackey v. Mackey, 545 A.2d. 362 (Pa. Super. 1988).
Of course, as any Pennsylvania lawyer will advise their clients, the best way to make the date of separation completely clear is by filing the divorce complaint. This prevents the other spouse from contesting the date of separation, which can protect assets their clients wish to have excluded as marital property if they obtained them after the factual date of separation. If clients of Pennsylvania lawyers are leery of taking that drastic step, they can keep in mind that divorce is not instantaneous, and the petition will not be immediately granted. They will have some time should they choose to reconcile with the other spouse instead of taking that final step toward dissolution.