What Is Legal Separation in PA?
Until 1967, there was no status of legal separation in Pennsylvania. Even today, people will often be confused by the terminology. If you google the term "legal separation in PA", you will find some information that appears to be helpful. Unfortunately, some of it is wrong. Under the laws of PA, there is no such thing as legal separation. It is a misnomer. There is a concept of separation – an act of separating from one another. However, there is no formal legal status called separation.
The term legal separation has become popular for people who have been married and are living separate and apart from one another. Now we know that to be legally separated from someone, you have to divorce from him or her according to the Divorce Code. Even a Judicial Separation regarding spousal support, alimony , or alimony pendente lite would be considered a divorce. That is because the only way you can be legally banned from having sexual relations with the other person from whom you are separated and the only way that you can be all the way through the Divorce Code is when you have a divorce.
A Decree of Divorce is the only way you can obtain relative finality in your southern Pennsylvania or central Pennsylvania divorce from a judge or court. Legal Separation does not exist. There is simply separation with no legal support to augment or enhance the status. It is just a separation that gives you some legal protection regarding the payment of the debt, the titling of real estate, and the ability to have exclusive possession of the home and exclusive possession of bank accounts and other assets. The reason that the law contains this protection, is because we do not want men or women suddenly taking control of assets and draining bank accounts right in front of our eyes.
This is the most important part of legal separation that everyone should understand. We do not mean to make fun of the word the legal separation. Even though it is a misnomer we will use the term legal separation if it gives you some needed clarity on what the status is between you and your spouse. It is illustrative more than it is correct although it is known as the "courthouse’s mistake."
The Procedure to Be Legally Separated
Several steps are involved in the process of becoming legally separated, beginning with filing an action in court. A legal separation is obtained by filing a Complaint in Divorce. Once a Complaint is filed, the Sheriff serves your spouse with the Complaint and you can then file a Notice of Intention to Request the Court to Enter a Divorce Decree 90 days from the date the Complaint was served on your spouse. Ninety days after the service of the Complaint, either party may file an Affidavit of Consent to Entry of a Divorce Decree along with a Judgment of Divorce, which a judge may sign, thereby concluding the matter.
As part of the Affidavit of Consent, you must provide the original and two copies of the following:
- (1) The filing fee;
- (2) The Vital Statistics form, which provides information relevant to the preparation of the divorce decree; and
- (3) Your sworn Affidavit, verifying that you have met the time requirement for divorce and that it is not your intent to reconcile, together with a proposed Judgment of Divorce.
You may also seek a Rule to Show Cause if your spouse has not signed the Affidavit of Consent after 90 days and you wish for the court to appoint a Master to hold a hearing on the grounds for divorce. This process is a much more expensive and protracted path to becoming legally separated.
NOTE – If you are in one of the few counties in Pennsylvania where PICS fees are required by the Office of the Attorney General due to the dependence on the Lawyer’s Fund for Client Security (formerly the IOLTA Fund), the fees vary by county.
Rights and Responsibilities during Separation
In Pennsylvania, once a couple is legally separated, their rights and legal obligations toward one another change. From supporting a spouse to paying for the children’s needs, all financial and practical details of separation have to be addressed. Separation does not affect property ownership, rights or any obligations between the parties unless one or both parties decide to alter the ownership status or rights in writing. However, a court can issue an order to sell the real estate or divide the proceeds. Any real estate sold after separation is presumed to be marital property and therefore subject to equitable distribution. If a temporary support order has been entered and child support is being paid, the payor spouse cannot leave the state without permission of the other spouse or the court. If child placement with the children is altered by one parent moving out of his or her initial residence, notice must be given first to the other parent. In many instances, the moving parent will not be able to take the child out of the original residence as this action needs both parents’ permission generally. If the moving parent does not have permission from the other to take the child out of the residence, the moving parent may be in contempt of court. Similarly, a spouse may be under additional obligations, such as making mortgage payments and paying life insurance premiums for the ex-spouse’s benefit, depending on provisions of the divorce decree issued by a court. If the parties cannot agree on the terms of their legal separation, the slower and more costly option is for each spouse to file their divorce action with the clerk of courts and to surround the divorce with various motions that are heard before the court or by a family law master. If the parties agree on the terms of their separation and divorce, they can save significant time and money by preparing and filing for divorce, including a settlement agreement with the necessary documents, at least 90 days after the date of separation. At 90 days following date of separation, once the documents are filed, Pennsylvania law states that the complaint can be filed. Although it takes 90 days, to be safe, wait 90 days from the date the defendant acknowledges service of the divorce papers under the mailbox rule.
Pros and Cons of Legal Separation
Legal separation can be beneficial to some individuals, however, there are some disadvantages as well. The following paragraphs list some of the pros and the cons to legal separation:
Pros:
• It provides parties opportunity to live separately, away from each other, and determine whether or not that period of separation allows both individuals to feel comfortable with a new normal or new way of living.
• It provides you and your spouse the means to begin to divide marital assets in a way that is both fair and legally acceptable, without the finality of divorce.
• It allows parties to see if a divorce is necessary or can be avoided.
• It allows you to determine if the relationship is salvageable, and thus allows you and your spouse the opportunity to pursue marital therapy to save the marriage, if that is the desired end.
• It provides another tool in the toolbox of the cooperating spouse to begin the process of divorce.
• It provides one spouse with the ability to become financially independent of the other spouse.
Cons
• In some counties, even if a marital separation agreement is reached between the parties, one spouse does not have a right to ask for alimony during the marital separation period.
• It is possible that the separation will turn into a divorce, or that the separation will be an extended one, which can make moving on in life more difficult.
• Finding employment in today’s economy is difficult, so waiting until the parties are separated can cause undue financial hardship to one or both spouses.
• It can be a great deal of effort to get something finalized with your spouse, or get your spouse to comply with the terms of the agreement.
It is important to wait to become legally separated until you have found the right arrangement for you individually, so that you can obtain the necessary help to move forward with your life. Spousal support can be difficult to obtain if your agreement is not "ironclad" and may result in you losing any right to receive support that you may be entitled to if you were not separated. If you can reach those agreements, though, it is always best to have those entered into a formal document so that you can protect yourself against an uncooperative spouse.
Impact on the Divorce Process
One consideration for many separated couples is how their legal separation may impact the divorce proceedings down the line. As you can generally imagine, the longer the separation period, the more likely that a judge will be willing to consider the appointment of a master and to address some of the issues in the pending divorce case. The basic cut-off for separation to apply is relatively straightforward: If the parties remain separated for one year, the separation period applies to the case and the judge must apply that separation period when dividing the marital property and determining the extent of alimony. If the parties have been separated for less than one year , the separation period does not matter. Therefore, it can be an advantage for the moving party to file sooner rather than later as final divorces can often take years to reach final disposition. In addition, for couples who signed an agreement of separation prior to starting the divorce process, the separation agreement may preclude the court from addressing any issues contained within that agreement. When this agreement was done with the oversight of a judge, then there should be no issues from this set of agreements. However, agreements made out of court can be problematic for the opposing party when the party is focused on a certain point of view, or if that party has no idea the agreement exists.
Financial Considerations of a Legal Separation
In many cases, the reason that people decide to separate before filing for divorce is that they cannot afford to financially maintain two households. In Pennsylvania, one spouse may be entitled to alimony pendente lite or interim spousal support. Essentially, alimony pendente lite is the financial support that a court orders one spouse to pay to the other during the pendency of the divorce action. Sometimes this is referred to as spousal support as well. There are a number of factors that a court will consider in determining if a spouse is entitled to alimony pendente lite and the amount as well. For those spouses that do not enter into a written separation agreement, another area of contention is the division of marital assets. But more importantly, the credit card balance, mortgage payments and the like, that each spouse may have in their own name. If a spouse files for divorce and it turns out that no one was paying the mortgage or the credit cards, then it may be up to the court to decide who is responsible for paying those debts as well as the amount that that person would be reimbursed from the marital estate, meaning the evidence that was gathered during the divorce action. These expenses can be a burden for the spouse that filed for separation and divorce first.
Importance of Mediation and Representation
Before filing for legal separation in Pennsylvania, or moving in different directions in an attempt to separate, it’s very important that you consider the potential value of mediation. Mediation can help estranged couples understand each other’s points of view, as well as avoid making permanent decisions that (a) may be costly or (b) may make issues more difficult to resolve down the line. Consider being proactive by meeting with a certified mediator to decide whether legal separation or divorce is the best option for moving forward. Legal separation is a touchy topic, and many couples don’t know whether they should try to reconcile their differences or try to go their separate ways. Mediation may help you bridge these gaps. Meanwhile, if you do decide to file for legal separation, it’s important to have a qualified, experienced Philadelphia divorce attorney at your side. He or she will discuss all options that may be available to you, and advise you on whether legal separation — possibly via a "separation agreement," i.e. a contract outlining the terms of your separation — or divorce would be better, based on your unique circumstances.
Answers to Common Questions about Legal Separation in Pennsylvania
Q: Does a legal separation have any impact on my credit?
A: A legal separation does not affect your credit directly. While yes, you lose the benefits of being under the same house, mortgages, and loans are stated to you as individuals not as a married couple. However, once a divorce is finalized, a separation period has little to no impact on circumstances after.
Q: What if I owe money during the separation period?
A: You are the legal responsibility of your spouse, even if you are separated and you have a separation period prior to receiving a divorce. Your spouse is obligated to pay what they owe as well, so it will not change your responsibility in the end as long as you and your partner finalized your divorce properly.
Q: Should I rush the divorce process after my separation?
A: Not necessarily. Often those who choose to separate are doing so for a good reason, and going forward decisions that may be stressful or even emotionally taxing can become an overwhelming burden when you choose to rush into divorce too soon . Most people say to avoid this process until you feel ready and well educated.
Q: When should I choose to separate?
A: In Pennsylvania, it is five days after the date of your filing, once you have submitted the necessary paperwork and filled out the separation paperwork. The process of divorce is very specific, and does not usually allow you to choose your own date.
Q: Does my separation have anything to do with the alimony process?
A: There is some truth to this matter, though substantial value can vary per individual circumstance. Because you cannot sue for alimony until 90 days after your separation, alimony cannot be considered until then, providing the necessary window for the petitioning process to begin.
Q: Does a Legal Separation require a lawyer?
A: We strongly recommend that you do not try to take the matter into your own hands, even if you believe that the process can go smoothly. These matters can take sharp turns, and by not hiring a lawyer you are not prepared for the consequences that these turns may entail.