What Does Legal Separation Mean in Pennsylvania?
In Pennsylvania, legal separation does not have a specific statutory definition. Yet, it is a common step that many couples take before the initiation of divorce proceedings. When a couple or one spouse takes the step of separating, this simply means that they no longer will live together as man and wife. In other words, it signifies a mutual or unilateral intent to remain in separate residences while still remaining married.
Legal separation differs from divorce in that it doesn’t bring about the end of marital status. Still, it can have many similar benefits as divorce. For instance, by filing for legal separation, issues are settled in regard to assets, debts, alimony and child support. Once the terms are set forth in a legal document, both spouses are legally bound to abide by these terms.
Additionally, separation and divorce are similar in that they can lead to the eventual dissolution of the marriage. In many cases, when couples separate and then live separate lives for a period of six months or more, they may choose to file for divorce. Thus , separation can be the first step towards eventual divorce for many couples.
Personal and legal considerations should be made when considering separation. Livelihood and lifestyle likely will be affected by the separation, as both spouses will now maintain separate residences. The need for two households means doubling many living expenses. If there are minor children, shared physical custody (i.e., half time) may not be possible as both parents will have to have separate housing, which has obvious cost-related implications.
If separation leads to divorce, then separation can reduce the length of time that must pass before a divorce may be filed. In some cases, trial mechanisms may be put in place so that issues cannot become contentious. This sort of separation with "teeth" can help to produce stability for the future.
No matter the circumstances, separating from a spouse can carry a lot of weight. Whether the separation is temporary, indefinite or leads to the dissolution of the marriage, understanding and following the rule of law with regard to spousal issues is crucial to protecting one’s livelihood.
Legal Rights and Responsibilities When Separating
The Pennsylvania Divorce Code does give spouses the right to live separate and apart. What this means is that legally separated people have the right to divide their property because the law recognizes that when spouses no longer live together, it is equitable to divide the property.
When spouses are living separate and apart, more often than not this means that the husband buys a piece of real estate and they put it in his name alone so that he can prove the court that he bought the house with his own independent funds. Once the wife is no longer living with him, the husband typically rents the wife a bedroom in his new house and then he pays the mortgage and gives her all the rental payments. That rental payment amount should be whatever is necessary to pay the mortgage plus a little bit extra so that the wife can save money for moving expenses.
Because the spouses are legally separated, wife will get all of this money as well as her share of the equity in the home from the buyout of her interest. But, in the meantime, they continue to live under the same roof so they can save money for divorce expenses.
Note: Many lawyers do not know that the law allows this to happen. Unfortunately, many spouses find themselves living permanently with their spouses because their lawyers make them think they cannot live with their spouses in any capacity if they are getting divorced. That is incorrect.
Then, there are situations in which the parties split, they move to separate homes and they already have adequate housing in their own name. In those instances, you can still connect to that single household idea and separate your assets out through the separation agreement and eventually divorce.
The court can issue a Protection From Abuse Order that will preclude your spouse from living under the same roof as you in most cases when the abuse is severe.
Next, the court has the authority to order a temporary award of alimony. Alimony is money that can be paid in lieu of child support or has to be paid once child support is met. Likewise, the court can also order child support to be paid while you are separated.
The court can also make equitable distribution determinations while you are separated.
The Divorce Code also enumerates financial rights and responsibilities while spouses are separated.
How to Legally Separate in Pennsylvania
In Pennsylvania, initiating legal separation typically involves the following steps:
- Notifying your spouse: To begin the legal separation process in Pennsylvania, you must communicate to your spouse that you intend to separate. This does not necessarily mean that you have to in-person or even in writing inform your spouse that you wish to be separated. You can be considered separated if you and your spouse live apart from each other and do not plan to continue cohabitating as a married couple.
- Physical separation: You must truly separate yourself from your spouse in order to be legally separated. In other words, you cannot simply move into a different room in your house, but must move into an entirely separate residence.
- Complete a separation agreement: Although not necessarily required, you would be wise to draft a separation agreement with your spouse for the duration of your separation. The separation agreement does not need be filed with the state, but is a vitally important element to avoid any conflicts between you and your spouse while you are separated. You can even enter into a partial agreement with your spouse regarding certain elements of your marital assets, your debts and your children, as long as both parties agree to abide by the terms set forth in the agreement until your divorce is final.
- File appropriate court documents if necessary: While not necessary in order to separate from your spouse, you may want to file a petition for alimony pendente lite if you believe you will need spousal support during your period of separation. You might also consider filing a petition for custody if you and your spouse have children together, particularly if there is a dispute as to which spouse will have primary physical custody of those children.
Legal Separation and Finances
When two spouses legally separate, they need to consider a number of financial factors to ensure that they both adequately protect their financial interests. All property acquired between the date of separation and the date of divorce is considered marital property. Marital property is subject to equitable distribution and while states are not required to equally divide marital property on divorce, it must be divided in a fair manner between the parties. This means that if you are not satisfied with what you have, there is a good chance that the other party is not satisfied with what they have either. Each spouse may be even more motivated to negotiate a potential settlement, especially if children are involved. Your general goal during this time should be to understand the assets that you and your spouse have accrued and rationally consider what is fair for both parties in a potential settlement.
Keep in mind that marital property is defined by the law as property acquired either jointly or in the name of one spouse individually during the marriage. Any property acquired by either spouse excluding inheritances or gifts to one spouse from a third party during the marriage is considered marital property. Grouping all property together so that it can be fairly divided is difficult. Pennsylvania law takes a systematic approach to valuing marital property by requiring a neutral expert to appraise pieces of property like a home or a business in order to help spouses understand what their properties are worth.
Pennsylvania law will also address any debt between spouses. In the Commonwealth of Pennsylvania, marital debts are divided between the spouses in a similar way to marital property. This means that each spouse will be responsible for dividing any marital debt in a way that is fair to both parties.
Also vital to keep in mind is the income tax implications of your marital status. Many spouses ask themselves, "After I divorce, will I have to pay more in taxes?" If you are currently married, the law permits you and your spouse to file a combined tax return. In addition to tax savings, married filing jointly is often the most advantageous for both parties. However, a divorced spouse will need to file separately and may take a bigger tax hit. Divorcing couples can mitigate these tax issues if they plan ahead for these filing restrictions.
In addition, the tax brackets that are in place for married individuals filing jointly are wider than those for a single filer or a couple who files separately. Those filing jointly are likely to pay less in taxes than those who file separately or single. Tax considerations can play a significant role in the property and assets you receive following a divorce. For instance, a lump sum portion of your spousal support can sometimes be used to pay off debts to avoid divorce-related tax consequences.
Child Custody and Support During Legal Separation
Legal separation in Pennsylvania involves separating yourself from your spouse while remaining legally married. However, one of the biggest questions surrounding legal separation is how it affects child custody and child support arrangements.
Will my spouse be able to deny me custody of my children? Unless there are immediate concerns that you or your partner may harm the children emotionally or physically, in which case emergency action through the courts can be taken, legal separation ruling will have little effect on custody and child support. As long as provisions are put in place to care for the children, there is typically no risk of losing custody based on separation alone.
Will I have to pay spousal or child support? Both child support and spousal support are determined by law in Pennsylvania . Support amounts are calculated based on a set guideline. The state will take both parties’ incomes into consideration as well as any other factors it deems relevant.
What about health insurance? During the period of separation, one of the most important things to consider is which spouse will have primary health care coverage for the minors. If you have been the parent supporting the family, rather than receiving support, you’ll likely continue being listed on the family insurance plan through your employer. Otherwise, one parent will need to be added to the spouse’s insurance policy or one parent will have to obtain their own.
The impact of separation on child custody and support can be unclear to both parties. The best way to determine how separation will affect your children is to work with a knowledgeable family lawyer.
Legal Separation v. Divorce: An Overview
Pros and Cons of Legal Separation vs. Divorce
Many people interested in legal separation in Pennsylvania are often confused about the difference between legal separation and divorce. It is important to understand the distinction to find the right option for your situation.
Legal Separation Pros:
You are not divorced yet, and you may still want to save your marriage.
A legal separation provides you with some protection during the separation period while you decide whether to proceed with a divorce.
You avoid the waiting period, so you can remarry once you are divorced.
Your legal separation can serve as evidence of living separate and apart in some contested divorce cases.
Cons:
You are still legally married.
You will have to follow the rules of your agreement, or you could end up in court defending yourself.
Your spouse’s bad behavior generally will not impact the separation agreement because the court typically considers the agreement your contract.
You and your spouse are still legally responsible for each other’s debts.
Likelihood of reconciliation between the parties is a consideration for a legal separation.
Divorce Pros:
You are legally divorced and free to remarry immediately.
Your ex-spouse is solely responsible for any debt or obligation incurred after the divorce date.
The hearing process to obtain a divorce can be completed without either party being present for the proceedings.
Marital misconduct may be taken into account by the courts and in this case, the party’s fault could affect issues of property division and support.
Cons:
You will have to wait at least 90 days to obtain a divorce decree.
Divorces require court hearings, even uncontested ones.
The separation period duration is a factor for consideration in a fault-based divorce.
The Value of Discussing Your Situation with a Legal Expert
The complexities of marital law can be overwhelming to those who are going through the legal separation process. For this reason, it is critical to seek the assistance of a qualified professional to guide you through the law and your options. It is essential to consult with a seasoned, Divorce Attorney as soon as you think you may file for legal separation. You can avoid many unforeseen problems, delays, and higher costs by having an attorney involved in your legal separation as early as possible. The final legal separation documents will address matters of child custody, child support, alimony, division of marital property, and many other issues. A competent and experienced Chester County Divorce lawyer can be a critical asset at all stages of the legal separation process. An attorney will ensure your interests are protected and your rights are represented throughout the state mandated separation period. He or she will also help protect your interests regarding child custody, alimony, property distribution, and support issues via a Separation Agreement that can be incorporated into a Divorce by Agreement, if you and your spouse should later choose to convert your separation agreement into a divorce. Keep in mind that the court process can be emotionally taxing, especially if you have children. Once you have made the decision to legally separate, don’t go it alone. Consulting with a qualified Chester County Divorce lawyer will help you understand your rights and plan for your future.
Frequently Asked Questions about Legal Separation
What are the requirements for legal separation in Pennsylvania?
Legal separation in Pennsylvania does not have any formal requirements; legal separation is simply the period of time a couple has lived separately before filing for divorce. You may qualify for legal separation if you and your spouse have separate residences, and you have no intention of living together as a married couple.
Which spouse do I file for legal separation in Pennsylvania?
Either spouse can file for legal separation in Pennsylvania.
If we file for legal separation, will I have to wait a year to file for divorce?
No – the length of legal separation does not affect your ability to file for divorce. In Pennsylvania, either spouse can file for divorce at any time, regardless of the duration of legal separation.
Does legal separation affect asset division in Pennsylvania?
A marriage separation agreement can offer some protection to both spouses in case one person decides to move away. A legal separation agreement outlines which spouse will pay for particular expenses and when to divide certain property . Eventually, any property acquired after the separation will most likely be the separate property of the spouse who acquired it. In this way, legal separation can simplify asset division in cases of divorce, but it is not a legally binding contract.
Should we seek legal separation before divorce?
Some couples find legal separation beneficial for a short time. In some cases, separation helps to clarify issues like custody, support, and asset division, making divorce settlement easier to achieve. It can also give a couple more time to consider whether they want to pursue a divorce or reconcile the marriage.
What if our legal separation lasts for several years?
Although there is no time limit for a legal separation in Pennsylvania, you should keep in mind that if you ever decide to file for divorce, your spouse can challenge the grounds for your divorce if he or she has not been living apart from you for at least a year. Having a collection of financial documents demonstrating separate property can act in your favor.