Tag Archive for: separate and apart

Separation Defined

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 at least one year. This is referred to as a separation divorce. Separation, however, does not mean the parties have to physically live separately. Parties may elect to still reside in the same home but can be considered “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.

The date of separation can be a date earlier than the filing of the complaint. For example, if there is a physical separation the date one party moves out of the marital home is 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 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 explicitly aware of your intentions, especially if you will continue to reside together and/or hold off on filing for divorce.

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Reconciliation

Pennsylvania allows a no-fault divorce on the basis of one year separation period. Separation is defined in Section 3103 of the Divorce Code 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.” Cohabitation, though not specifically defined in the divorce code, is generally understood to be living and dwelling together as husband and wife with the mutual assumption of all marital rights, duties and obligations. It requires more than just remaining in the same house overnight or for the weekend or taking a week-long trip together. Any reconciliation between parties can negate a prior separation period. Specifically, if a party is pursuing a divorce on the grounds of separation, a reconciliation may result in a new date of separation date and hence a new one-year waiting period.

Case law has distinguished what actions/behavior will be considered a successful reconciliation, hence tolling a new period of separation, versus those actions/behavior that will not change the initial separation date. For example, isolated instances of sexual relations during a separation will not alone establish a reconciliation. Additionally, residing in the same home does not alone establish reconciliation. The court would examine the facts in each case and evaluate whether or not there was a full-blown resumption of the marital relationship. In Britton v. Britton, 400 Pa. Super. 43 (1990) a reconciliation was recognized when the reconciliation lasted three months, the parties resumed living together, ceased to maintain separate residences, jointly purchased a townhome, shared the same bedroom, engaged in sexual relations, shared a joint bank account and had a social life as husband and wife.

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