What Does a Legal Separation Entail in Pennsylvania?
What is Legal Separation in Pennsylvania?
As a lawyer, I’m often asked to explain the difference between a legal separation and a divorce, in terms of whether they are really just ‘word choices’ for the same thing or whether there are actually differences worth considering. Most divorces, after all, start out as separations, so isn’t the terminology all sort of the same thing?
Not in Pennsylvania. Here the law has even adopted a definition of ‘legal separation.’ Family Law Section 1923 of the PA Divorce Code defines separation as a period of time where "either spouse: (1) has ceased to engage in marital relations with the other spouse, and (2) has the capacity to present the other spouse with a notice of intention to file a divorce complaint."
This statutory definition of what constitutes a separation has important implications for anyone filing for a divorce in Pennsylvania. For example, if a person can show the court that they are still engaging in marital relations with their spouse or that they don’t have the capacity to present a notice of intention to file a divorce complaint (i.e. if they are declared mentally incompetent or are otherwise incapable of forming a basis to file for a separation) , then they might be denied a divorce because they do not meet the statutory definition of a legal separation.
The legal separation is not, however, a status you file for like you would a divorce. Rather, it’s a process in many families – where husband and wife just start living apart. In fact, you could be legally separated from your spouse simply because you live in two different places or sleep in different bedrooms. The problem, however, is divorce often becomes a necessary step for those who are already physically separated.
After you no longer live with your spouse, you will be expected to remain separated for at least a year before either of you can file for a divorce as long as custody is not in dispute. After a year apart, the separation period gives way to the no-fault grounds for divorce. However, the clock restarts if you reconcile with your spouse before you file for a divorce. In other states, such as Nevada or Texas, divorcing is much easier. But, in Pennsylvania, legally separating from your spouse is a pretty common first step before filing for a divorce.
For more clarification on legal separation and divorce in Pennsylvania, call the office of Kelly & Collis today.
Common Reasons for PA Legal Separation
The decision to separate from your spouse is often a very difficult decision that some people do not make lightly. We see many people who are considering filing for a divorce, however they are not quite ready to take that step. However, before you take such a drastic step, consider which option is right for you. Is it to file for legal separation or should you officially start a divorce proceeding? We wanted to give you a brief insight into the reasons why someone may choose to file for legal separation rather than starting the divorce process in Pennsylvania.
Financial Reasons Sometimes you or your spouse may not be able to sustain themselves financially on their own. There may be an issue of opportunity for the least amount of financial burden to you and/or your spouse. For example, your spouse may have a higher earning salary than you do. If they file for the divorce, they may be required to pay spousal support, which may place an undue financial burden on them. On the contrary, if you filed for divorced, you might have less assets than your spouse. You may need to spend more money on an attorney to get you the divorce you are seeking. There are many different permutations to each relationship that we can’t logically fit everyone into a certain financial "box" and say that this option will be right for you because this would be simplistic in our approach. Sometimes it works out that you are better off financially staying legally separated.
Religious Beliefs In some religious traditions, a legal separation is required before you can move forward with a divorce. In some religions, once you are separated from your spouse, you are considered married indefinitely unless you go through the process of divorcing. This option can be in line with religious beliefs if you are involved in a religion that adheres to this standard.
Personal Considerations There are many reasons why family law matters come into play when making a decision of separating versus divorcing. Perhaps you are just not ready for the divorce. Emotionally, you may still be attached to your spouse. It may be a solution that you are considering in for a limited amount of time. Maybe you have children and separating makes the most sense for the family at the current moment.
Legal Separation Explained: Process in PA
The process for legal separation in Pennsylvania is to file documents and wait the required period of time. The following paragraphs will attempt to explain the legal separation process and rules for legal separation in Pennsylvania.
The first step in the legal separation process in Pennsylvania is usually to file a complaint with the Court. The grounds for relief in equitable distribution are "irretrievable breakdown of the marriage or irreconcilable difference." A timely filed motion to compel discovery has found to not break up the divorce sixty day period. For those seeking a divorce, it is important to keep in mind the divorce waiting period is not the same as the litigation process. One of the most common divorce mistakes is people file and think they are done with their divorce. In Pennsylvania a divorce does not become final until there is a final decree or a settlement agreement that is signed by both parties and entered into the Court pursuant to notice rules.
Since you have decided that a temporary separation can work for you, it is important to note that a court decision on a temporary separation is not a part of the legal separation process. Legal separation in Pennsylvania says all of your property is ultimately part of the marital asset division. If you as a spouse want a legal separation, you need to first file for divorce.
Grounds for Legal Separation in Pennsylvania
In Pennsylvania, the concept of legal separation refers to a period during which spouses live apart and file for divorce, but do not necessarily meet the legal requirements for divorce. In other words, legally separated spouses no longer have joint responsibility for debts and assets, but they are still, in the eyes of the law, married. Legal separation is not an official legal status in Pennsylvania. Pennsylvania courts do not issue "legal separating orders," nor is there a google online form for filing "for legal separation."
For the Pennsylvania court system, the term "legal separation" is often used as shorthand for the period between when one spouse moves out of the house and files for divorce. (A spouse can file for divorce as soon as he or she has moved out, even if that happens on the same day he or she receives the divorce papers.)
In a sense, legal separation is like a "cooling off" time. While legally married, spouses may reconcile, and/or arrange for more amicable discussions with their spouses on issues such as property division and custody arrangements before filing for divorce.
Thus, the requirements of legal separation are simply the requirements necessary for filing for divorce, since the moment a spouse moves out and files for divorce, he or she is no longer "living in sin," but "legally separated."
Among other requirements, the divorcing couple must either: To file for divorce, the spouse who moved out of the house has to wait at least six months before filing for divorce on the grounds of incompatibility or desertion. If the spouses have children under the age of 18, the divorce process will take even longer. Lastly, if the divorcing couple has significant assets between them, the process may take up to two years.
Other than the mere fact that spouses live apart, legal separation has no impact on the court’s decision on dividing property, even if that property was acquired during the legal separation.
Legal Implications of Separation in PA
In Pennsylvania, the legal outcomes of a legal separation can be numerous. Some will relate to marital property, while others will address issues like child custody and support, and spousal support.
Marital property
One key legal outcome of separation is the division of marital property. Pennsylvania’s equitable distribution laws govern how marital assets are divided between spouses. Normally, assets that are classified as joint and marital property are subject to division under state guidelines while any assets that have been kept solely in one spouse’s name or that were acquired before marriage are generally considered separate property and will not be divided.
Many couples know that their marital property needs to be divided when they meet with their divorce attorneys. They may be surprised, however, to learn that the division of marital property can be done before their divorces are finalized. It is possible for separating spouses to enter into an equitable distribution agreement about the division of their marital assets. If the spouses cannot reach an agreement about the division of their assets , either side may file a petition for equitable distribution and ask the court to make the decisions about their marital assets.
Custody and support
Another possible outcome of separation relates to children. Parents who are living separately may be able to come to agreements about their custody and visitation schedules. These agreements are enforceable as consent orders if they are approved by the court. Parents whose cases are in front of the court may have the court order entered interim custody and visitation awards. Parents also have the option of reaching agreements about the payment of child support and to have those agreements enforced as part of their final orders.
Separation does not stop the court from ordering payments of alimony pendente lite, the temporary right to spousal support during a pending divorce. Spousal support may also be ordered for a lesser-earning spouse if the parties are not married or divorced but living separate. However, living separately is not necessarily the only way to qualify for alimony pendente lite or spousal support.
Enforcement
If a separating spouse refuses to follow a support order, the other spouse can file a petition with the court to enforce the order. The court will then hear both sides of the issue and may issue a directive to jointly and legally compel the noncompliant spouse to comply with the order.
Pros and Cons of PA Legal Separation
Considerations for legal separation versus divorce include the benefits and drawbacks. Under Pennsylvania law, most military members are permitted to receive a divorce in as little as 60 days if they obtain a military divorce. However, many military families wait to obtain the divorce until a later date. They may want to keep their legal separation documents in a military file or request a divorce at a later time for other reasons. Both a divorce and legal separation can have significant effects on service members and their families. Few courts require couples to work out all custody and distribution issues before a divorce is granted.
Legal separation has several benefits for couples in the military. One of these is that it allows married couples that are serving far away to settle legally without having to be near one another. For instance, many men are deployed overseas or live in different states. This puts requesting a divorce in the hands of only one spouse. In addition, it allows those that choose legal separation to retain certain benefits while working to settle matters. Health care, military housing and retirement options may be just some examples of what may be lost if you choose to move forward with a divorce.
In addition to the idea of losing benefits, one of the drawbacks of legal separation may be that it does not finalize matters involved with the division of property. Instead, it lets both parties know where they stand so that they can begin their physical and emotional separation. For this reason, legal separation may create a sense of uncertainty and unhappiness by leaving things up in the air. The ultimate goal is often to obtain a divorce. In fact, legal separation is not an end-goal for most people. However, there are few options for those that serve in the military if a divorce is not really an asset.
Divorce may sometimes present unforeseen complications. Legal separation allows you to periodically re-evaluate your course of action. Many people reach a point in which they decide that they do not want a permanent separation and would rather get divorced. Separation may not always lead to divorce, but legally rivalling with the court can be a great way to remove confusion when filing for a divorce at a later date.
PA Legal Separation FAQs
Q: Is legal separation required or does it mean the same as divorce in Pennsylvania?
A: No, separating is not a required step and legal separation is not the same as divorce. You can separate without divorcing or even get divorced without first separating. However, many couples do choose to separate these days before they file for divorce. You might, for example, decide to separate if you want to give the relationship another try or you’re deciding how best to divide and dispose of your property.
Q: How do you file for legal separation in Pennsylvania?
A: To legally separate, only one spouse has to leave the marital home. You don’t have to sign any agreements or file any legal documents. However, one couple’s separation can sometimes lead to another couple’s divorce. In other words, you may file for legal separation as a waiting period before you file for divorce. Many couples find that filing for legal separation can make a divorce go much easier. If you file a legal separation with a divorce complaint, the separation and divorce will be handled by the same judge and no additional paperwork is needed.
Q: Is a legal separation binding?
A: Although a legal separation isn’t a requirement for divorce in Pennsylvania, you may want to consider entering into a Legal Separation Agreement that effectively becomes a contract between you and your spouse. In the agreement, you outline the terms of your separation with regard to property distribution, child custody and support, and alimony.
In this case, the separation is legally binding on both spouses. If one of you breaks the legal separation, the other can seek a divorce without having to wait for the year waiting period.
Legal Help
Before commencing legal separation, couples should seek an experienced attorney to advise them in navigating the complexities of a legal separation case. It is important to have a lawyer who understands not only the issues set forth in your case , but also has a detailed understanding of Pennsylvania’s specific law for all issues involved. Hiring the appropriate attorney with the proper knowledge and experience will provide you with the piece of mind necessary to continue with the legal separation process and ultimately obtain a divorce proceeding.