Tag Archive for: divorce

Two-Year Separation – Divorce

Most parties pursuing divorce will choose to proceed with no-fault grounds for divorce. A no-fault divorce simply means there has been an irretrievable breakdown of the marriage. There are two different ways to establish an irretrievable breakdown of the marriage under the Divorce Code. First, both parties may consent to the divorce after 90 days from when the complaint was filed and served. This is referred to as a 90-day mutual consent divorce. Alternatively, if one party won’t consent, the other party can move forward after the parties have been “separated” for two years. This is referred to as a 2-year separation divorce.

Separation does not mean the parties have to live separately. Many parties still reside in the same home but are considered to be “separate” based on the definition provided by the Divorce Code. Section 3103 of the Divorce Code defines “Separate and apart” as follows: “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.”

Accordingly, the date the divorce complaint is filed will generally be accepted as the date of separation regardless of whether the parties continue to live together or not. However, the date of separation can be an even earlier date. For example, the date one party does move out of the marital home is usually a clear indication the marriage is over, and hence, an acceptable date of separation. Alternatively, even if the parties continue to reside together, a date of separation can be established when one party makes it clear to the other party that the marriage is over by stating so clearly or even reducing it to writing. The party alleging 2-year separation will have to submit an affidavit certifying the date of separation. The other party has an opportunity to object and a hearing may be held if necessary to determine the appropriate date of separation. Accordingly, be sure that the other party is keenly aware of your intended separation, especially if you will continue to reside together and/or hold off on filing for divorce.

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Common Law Marriage

Common law marriage could be established in Pennsylvania up until January 1, 2005. All common law marriages established before that date are recognized as valid marriages. In order to establish a common law marriage, the parties must have exchanged words of intent to be married and held themselves out to their community as being married. Often, the parties also lived together for some length of time. While this is not a requirement in and of itself, it plays into the couple having held themselves out as married. Once a common law marriage is established, it can only be resolved by divorce just as with any regular marriage. Pennsylvania is presently in a transition stage in that while no new common law marriages can be created, there are still inquiries into whether they were previously created and accordingly, how the ancillary issues should be handled, i.e. divorce versus civil suit.

Moser v. Renninger, 2012 PA Super 59 (2011) discusses the procedure and timing for establishing or denying common law marriage.

In Moser v. Renninger, Wife filed a divorce complaint on November 19, 2010 stating that her and Husband had entered into a valid common law marriage in 1985. Husband subsequently filed an Action for Declaratory Relief asking the court to declare that no common law marriage existed. After an evidentiary hearing on the matter the court held a common law marriage was in fact established on June 8, 1985. Husband immediately sought to appeal the court’s finding that common law marriage existed. Husband’s appeal was denied on the basis that it was premature. Because the issue of whether there was a common law marriage was raised in the context of the divorce, the court found that Husband could not file an appeal until the divorce matter is final. If, however, the issue of common law marriage had been addressed separately, an appeal following the decision would be appropriate as the entire matter would be concluded.

This method may be considered favorable in that it allows the entirety of the divorce to be resolved without the delay and disruption of an appeal. On the other hand, it may be a waste of the court’s time to resolve the divorce and all related issues if their ruling that the parties were in fact common law married is later overturned.

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