David DraganoskyBy David J. Draganosky, Esq.

There is a meme circulating the internet of a person hiding behind a tree, licking his chops (almost drooling) and wringing his hands with the caption “Divorce Lawyers Waiting for People to be Quarantined with Their Spouse for Weeks” .  While the obvious focus of that meme is to poke fun at divorce lawyers, it got me thinking about spouses who might want to separate, but cannot or prefer to not physically leave the marital home.

Separation is an important concept in the context of divorce primarily for two reasons.  First of all, being separated for one year or more coupled with irretrievable breakdown is a basis to establish grounds for a divorce.  Without grounds, a court will not issue a divorce decree.  So, as a procedural matter, it can be important to establish that separation occurred.  Secondly, marital property and marital liabilities, with limited exceptions, are comprised of everything acquired by either or both of the parties from the date of marriage to the date of separation.  Therefore, if a party acquires an asset after the date of separation, there is likely a strong argument that his or her spouse has no interest in that particular asset.  Similarly, if a liability is incurred before date of separation, it is likely the responsibility of both parties.  Consequently, from a financial perspective, it can work to the benefit, or detriment, of a spouse if separation is established sooner, rather than later.

If parties are physically living separate and apart (i.e., not within the same house), that is generally sufficient to establish separation in most circumstances.  There are situations where happily married parties do not live in the same house, but those circumstances are relatively uncommon or otherwise distinguishable.  For instance, parties who live in separate houses because their jobs are geographically distant from each other, or a spouse who is in the armed services and deployed away from home.

But, what if spouses want to separate, but cannot or prefer to not physically leave the marital home?  Reasons for not leaving the marital home are varied.  As I write this, many people are quarantined or not otherwise able to leave the marital home because of the COVID-19 crises.  Some other reasons include: 1) the financial reality that a party may not be able to afford to move from the marital home; 2) a party’s unwillingness to leave the marital home as it may be perceived as desertion or abandonment; 3) a party’s unwillingness to leave the minor child(ren) with the other party or to take the minor child(ren) from the home; and 4) the need of a party to maintain a residence in a particular locale to fulfill employment requirements.  Fortunately, in Pennsylvania, it is possible to be separated for divorce purposes while still living under the same roof.

The standard for establishing separation is whether one of parties to a marriage establishes the independent intent to dissolve the marital union which is clearly manifested and communicated to the other party.  In theory, it is enough for one party to simply tell the other party that they want to end the marriage.  However, in practice, the party asserting separation may need to prove that he or she clearly manifested the intent and communicated it to the other party.  Unfortunately, words that are merely spoken are easily subject to interpretation and denial.  As such, it is best to put those words in writing.  Even better, have your attorney send an official letter to your spouse advising him or her of your intention to end the marriage.  Then, reinforce your intention through your actions such as: 1) sleeping in separate beds/moving into a separate bedroom; 2) ceasing physical intimacy; 3) establishing separate bank accounts; 4) terminating direct deposit of paychecks to a joint account; 5) dividing or separately contributing to joint expenses; 6) stop attending religious services together; 7) stop jointly socializing with family and friends; 8) stop wearing your wedding ring; 9) tell others that you are separated; and 10) do not go on vacations together.  This list is certainly not exhaustive.  Moreover, the mere fact that you may continue to do one or more of these items may not jeopardize your claim that a separation has occurred.  Nonetheless, it is best that your words, as well as your actions, mirror your intent to dissolve the marital relationship.

One of the most definitive ways to establish separation while still living under the same roof is to file and serve a divorce complaint on the other side.  In fact, according to the Pennsylvania Divorce Code, it is presumed that the date of service of a divorce complaint is the latest date that the parties commenced living separate and apart.  After all, the service of a divorce complaint is a rather clear manifestation and communication of a party’s intent to end a marriage.  Of course, there is always an argument that the parties subsequently reconciled and are no longer separated, even if a divorce complaint is filed and served on the other side.

The divorce and family law attorneys of Shemtob Draganosky Taylor, PC are available to assist with all of your family law matters including, but not limited to, determining the best time to establish separation; establishing separation while you continue to live under the same roof with your spouse; and advising you on actions that you can attempt to counteract your spouse’s efforts to establish separation.  Contact our family lawyers in Montgomery abd Bucks Counties at (215) 542-2105 for a confidential discussion.

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