A common question from new clients is, “does Pennsylvania have legal separation?” The answer yes, but how it is achieved differs from other states. The goal of this article is to explain, in general terms,legal separation in Pennsylvania. Three follow-up articles will focus on how a couple can become legally separated, how legal separation affects each spouse’s property rights, and how legal separation affects the couple’s marital rights.

In some states, in order to obtain legal separation from your spouse, you are required to file with the appropriate court. The story I use to illustrate how this works is that of Holly Lahti of Idaho. In January 2010, Ms. Lahti won half of the $380 million Mega Millions jackpot. At the time of the drawing, Ms. Lahti and her husband, who had a violent history, were separated. Nevertheless, at the time of the drawing, neither party had filed for divorce, so they were not legally separated. As a result, Ms. Lahti’s husband is likely entitled to a portion of her $190 million winnings. Upon learning of this news, her husband remarked, “That’s awesome! I won’t have to pay child support!” (See “Mystery Surrounds $190 Million Idaho Lottery Winner,” USA Today).

In Pennsylvania, however, you are NOT required to file any documents with the Court. According to 23 Pa.C.S. § 3102, separation occurs when the parties cease “cohabitation, whether living in the same residence or not.” Unless proven otherwise, legal separation is presumed to commence no later than when the divorce complaint is filed and served.

The Superior Court, however, has defined cohabitation as “the mutual assumption of those rights and duties attendant to the relationship of husband and wife.” Thomas v. Thomas, 483 A.2d 945 (Pa.Super. 1984). This definition means that you and your spouse can be separated while living in the same home and, conversely, you can live in separate homes, but still not be legally separated.  The filing for divorce is typically not required to qualify for legal separation.

As a result, there is no clear test for determining whether a couple is separated. The courts review each separation on a case-by-case basis. The court consistently considers certain factors, however, including: (1) whether the parties still live together; (2) whether the parties maintained a social life as husband and wife; (3) whether the parties have continued sexual relations; (4) whether the parties have separated their finances; and (5) if the parties still live together, whether they continue to share the same bed. Compare Mackey v. Mackey, 545 A.2d 362 (1988), with Britton v. Britton, 582 A.2d 1335 (1990). No one factor controls.

The court has explained that the reason for such a loose examination of separation is to avoid discouraging reconciliation between the spouses. The court explained that a stringent test for separation could have a “chilling effect” because “estranged spouses would be reluctant to attempt a reconciliation if a failed attempt to re-establish the marital relationship causes” a delay in the overall divorce procedure. As a result, the court is there to resolve issues of separation without getting in the way of married couples working through a difficult, emotional divorce.

The Divorce Code states, however, that is presumed that separation occurs at the latest at the time when the divorce complaint is served on the opposing spouse. See 23 Pa.C.S. § 3102 Nevertheless, it must be noted that this is merely a presumption and can be rebutted by competent testimony and evidence to the contrary.

Understanding when you legally separate from your spouse is extremely important because it can directly impact your property rights related to both marital property and, like Ms. Lahti, post-separation property, as well as your procedural rights under the divorce and your entitlement to support. As a result, if you are considering a separation from your spouse (even if you are not interested in a divorce), I recommend reviewing the on this topic and then consulting with an attorney to understand your rights and obligations.

If you have any questions on legal separation, please contact me directly at mhovey@gmail.com.  Thank you.

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