When you sit down for a divorce consultation, one of the first questions your divorce attorney is going to ask you is “when did you separate from your spouse?” For some, this is an easy question to answer, as they will remember specific details from that one day back in June 2020 when something happened and that moment is forever engrained in their memory or the date when one person moved out of the house. For others, there may be a discussion about a few different dates, for example: the couple parted ways for a while and weren’t speaking or living together, but then they moved back in for a few months and tried to make it work, but that failed and now someone wants to file for divorce. For others, they might still be living together with their spouse and there is no separation just quite yet.
Often, individuals consulting with divorce attorneys will inquire if there is anything under Pennsylvania law that permits or requires a party to file for a “legal separation.” The short answer is – no. In Pennsylvania, the law presumes that the date of separation is the date on which the divorce complaint is filed and served upon the other spouse. This presumption will apply in your divorce case, unless one spouse can point to an earlier date and establish (through written communications and/or examples of past behavior) that the parties separated at an earlier point in time. The date of separation can be agreed upon by the parties and counsel, or, you can present your case at a hearing and the court will make a decision for you when there is no agreement or meeting of the minds.
Your “Date of Separation” is important for a few reasons, but primarily it is because this date establishes a bookend or cutoff date for when you go to value your marital estate, either through a settlement or after a trial by the court. In Pennsylvania, your marital estate is valued from the date of your marriage to the date of your separation; anything that happened during this timeframe is generally considered ‘marital.’ One of the other reasons that date of separation is important is because it starts the clock and waiting period for a consent (3301(c)) or non-consent (3301(d)) divorce under the PA Divorce Code. If both spouses consent to a divorce, you must wait 90 days after filing and serving the Complaint. If one spouse does not consent to the divorce, then you are required to wait one (1) full year from the date of separation before the Court will allow you to proceed and finalize your divorce.
I have had many cases lately where the parties decide to separate – i.e. one spouse sends a text message to the other saying that they are moving out of the home and they want a divorce – but then the parties get back together and try to make things work. Fast forward another 12 months, and the couple is now back at square one with a failed attempt at reconciliation. This is an example of when it can become critically important to answer the question ‘what is your actual date of separation?’ for valuing assets, and starting the timeclock for how long you need to wait before you can finalize the divorce in the court system. Your date of separation should only be determined after you sit down with a family lawyer to discuss the timeline of events, and review your marital finances, to determine how to proceed in your best interest. Ultimately, the best practice is to communicate your intention to divorce in writing with the other spouse, and as always, contact a lawyer as soon as possible to make sure you avoid any issues or confusion in the long run.