Family Law Lawyer Discusses Living Separate and Apart in Pennsylvania
What Is “Separate and Apart” in Family Law Terms?
Separate and apart falls under section 3103 of the Pennsylvania Divorce Code. Under the code, this term means a married couple ceases to cohabitate, whether living in the same residence or not.
While this may seem like an unusual concept, many couples proceed with a separation as it gives them time to reflect on their marriage before committing to a formal divorce. Additionally, separation rather than divorce may bring financial benefits such as:
- Retention of medical benefits
- Tax advantages and social security benefits
- Appeasement of cultures/religions that prohibit divorce
- Ability of military spouses to maintain military benefits.
It is common among couples who are living separate and apart to remain in the same home, either for financial reasons or because one spouse may be unable to work up the courage to leave the family home.
Either way, the couple may continue living separate and apart in the same home if it is established that they maintain separate bedrooms, meals are eaten apart from one another, entertaining as a couple is no longer occurring, and sexual relations have ended.
This concept arose from a Pennsylvania Superior Court decision in 1984 in which the court held that “living in quarters separated physically and without sharing the incidence and attributes customarily attached to the marital relationship” are enough to constitute grounds for divorce.
While no conclusive definition/test exists to satisfy this term, what is important is that the couple is living separate lives. If the parties engage in sexual relations, this does not by itself indicate that the parties resumed the marital relationship.
If a complaint in divorce is filed by one party, a presumption arises that the parties are living separate and apart not later than the date the complaint was served on the other party. This means that it shall be presumed that the parties are separated at least as of the date the complaint was filed and served.
How Does This Differ From Divorce?
The difference between the two terms is how the court recognizes them. A divorce is a legal end to a marriage while living separate and apart is the end of cohabitation and does not require a court order.
In order to receive a decree in divorce from the court, grounds for divorce must be present. Living separate and apart is a necessary element of a unilateral no fault divorce under Section 3301(d) of the Pennsylvania Divorce Code. In these cases, the spouse who wants the divorce must file a divorce complaint and he or she must allege an irretrievable breakdown of the marriage.
When the spouse can prove that the parties have continuously lived separate and apart for at least one year, the court may grant the decree in divorce even without the consent of the other spouse.
What Is a Separation Agreement and Is It Right for Me?
Although courts cannot officially recognize legal separation, a couple who is living apart may still negotiate a separation agreement between themselves to cover the time in which they are awaiting a divorce.
A separation agreement, which some may refer to as a postnuptial agreement, can establish some ground rules as to who is paying what bills, who has the right to use what property, including the marital home, and the like. The agreement can also address child custody, child support, and alimony.
For a number of reasons, a couple may wish to remain legally married yet want to live separate lives. Negotiating a separation agreement may be the best option for their doing so.
A separation agreement can last for as long as a couple wishes it to last and thus can prevent the couple needing to get a divorce in order to protect their rights.
Are You Considering A Separation?
If you are married and are considering a separation, you should consult a Montgomery County divorce lawyer before taking any steps. You must understand your legal rights so that you take the right steps.
The Law Offices of Sheryl R. Rentz, P.C. has more than 20 years of experience. We guide you through all the challenges you will experience during the process of separation. If this sounds like you, call us at (610) 645-0100 to schedule a free consultation.