One of the most important first steps in obtaining a divorce in Pennsylvania is to establish a date of separation.
The date of separation in a Pennsylvania divorce is important for two primary reasons:
1.) It starts the clock for certain mandatory waiting periods for obtaining a divorce in Pennsylvania; and
2.) It establishes a “cut off” date for the acquisition of marital assets and for the accumulation of marital debt.
A date of legal separation can be established via different means.
Perhaps the most definitive method of establishing a date of separation in Pennsylvania is to file a divorce complaint. The law presumes that the date of separation is the date on which the divorce complaint is filed unless a party can establish an alternate date.
An alternative way to establish a date of separation is through one party’s behavior, such as moving out of the marital residence or possibly even just moving into another bedroom and making it generally known that the two parties are now separated.
It is also important to separate the joint finances. This means that joint bank accounts should be closed and the parties should also stop accumulating joint or marital debts.
In order to establish a date of separation, a party’s conduct should clearly indicate an intention to separate from their spouse emotionally and financially.
Remember, prior to filing a divorce complaint, it is possible to “undo” the date of separation through your actions, for example, by resuming marital relations. This type of behavior and any other attempts that can be interpreted as reconciliation, however temporary, can create a new, later date of separation.
The date of separation is especially important under Pennsylvania law in non-consent based divorces, as there is a two-year time period that must pass before one party can obtain a unilateral “no-fault” divorce without the consent of the other spouse.
Because of its importance to the division of property, the Pennsylvania date of separation is often a major issue in divorce. If couples cannot stipulate to a date, then a court will have to decide.
Under Pennsylvania law the date of separation is described as the “cessation of cohabitation, whether living in the same residence or not.” This is a somewhat vague definition, which leads to an intensive fact-based analysis when the court needs to decide this issue.
As indicated above, the easiest way to establish a date of separation is to unambiguously inform the other spouse of your intent and then take clear actions to establish a date of separation, such as retaining a Pennsylvania divorce attorney and separating the finances.
Please note, while debt accrued by a spouse post-separation may not be found to be marital debt by the court, a spouse may still be liable to a lender for debt accumulated by the other spouse post-separation if they are a co-signer on the line of credit/loan. Therefore, upon separation, it is important to immediately close any joint lines of credit.
The date of separation can also play a role in the division of retirement accounts, especially when dividing defined contribution plans.
If you are a man facing divorce and are susceptible to possibly paying support in Pennsylvania, please consult with a divorce lawyer in your jurisdiction to ensure your rights are protected.
Cordell & Cordell has offices and family law attorneys located in Philadelphia, Pittsburgh, and Radnor should you seek additional information or possible legal representation.