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What does Separate & Apart Mean During an Uncontested Divorce?

Posted By Attorney Jim Cairns || 5-Dec-2016

With relationships changing in Philadelphia and across Pennsylvania and the country, definitions legal terms can be confusing. To help sort through the legal terminology for an uncontested divorce, we have dedicated this blog to explaining the meaning of the term "separate and apart" in Pennsylvania. You must be living separate and apart to get a Pennsylvania divorce.

Our current economic tide has forced many Pennsylvania couples to continue to live under the same roof even though their relationship has ended. Often these couples cannot afford to immediately vacate the marital home. Affording a second household can be challenging, especially if there are children involved.

The definition of living "separate and apart" in Pennsylvania does not necessarily mean that you and your spouse are living in separate places.It means that must no longer be cohabitating- you and your spouse mutually agreed that you both stopped fulfilling the duties and responsibilities of husband and wife. At least one spouse must have clearly and unambiguously

In the state of Pennsylvania at least one person, if not both persons in the couple, must state that he or she is living separate and apart. In addition, a declaration of living separate and apart must be a voluntary act. The act will not be valid if one or both parties are forced to declare the intent against their will.

"Separated" means that at least one spouse has clearly, obviously, and intentionally communicated to the other spouse that she/he wishes to completely stop living as a married couple. (NOTE: You MAY be separated and still live in the same home as your spouse and get a PA divorce).

Living separate and apart becomes of importance when couples are ready to file for their uncontested divorce. Married couples will be asked when they were separated. This date is then used as the date which the couples were living separate and apart,

The date for living separate and apart will also determine how quickly the divorce proceedings will move. If you have been separated for less than 1 year then you there is a 90 day waiting period imposed by law. The waiting period begins after your uncontested divorce has been filed and your spouse has been served the divorce complaint and notice to defend. If you have been living separate and apart for over two years the divorce proceedings will be quicker since there is no mandatory waiting period. Some of the factors taken into account for living separate and apart include:

  1. When spouses stopped sharing the same bedroom;
  2. How much time is spent in the marital home;
  3. When spouses stopped sharing meals;
  4. When did the couple started living independent lives;
  5. When the couple ceased having sexual relations;
  6. Actions which were done for the child's sake. These actions can include outings and giving the appearance that everything is fine.

Lastly, the agreed upon date for living separate and apart can affect marital assets. This date should be taken into consideration when you and your spouse are negotiating your marital settlement agreement.