One of the first questions clients often ask is about filing for a "legal separation." In Pennsylvania, there is no such thing as a "legal separation." However, it is important to determine a couple's actual separation date for a variety of reasons. For example, the date of separation is important to properly value assets owned jointly or individually by the parties.

When parties "separate" in Pennsylvania, it does not always require physical separation. In fact, spouses can be separated while still living in the same house, possibly even in the same bedroom. The key factor to consider is when did the spouses stop behaving like a married couple. In all cases, if one party decides to file a divorce complaint, that is the latest date that a court will consider the parties to have separated.

Pursuant to the Pennsylvania Divorce Code, the date of separation is defined as the date upon which the parties are living "separate and apart." The divorce code defines "separate and apart" as "the cessation of cohabitation, whether living in the same residence or not. In the event a complaint in divorce is filed and served, it shall be presumed that the parties commenced to live separate and apart not later than the date that the complaint was served". Cohabitation is defined as the "mutual assumption of those rights and duties attendant to the right of husband and wife." (Mackey v. Mackey, 545 A.2d. 362 Pa. Super. 1988)

The single most important factor is determining when a couple ceases to act as husband and wife. One spouse's intent to dissolve the marital relationship must be clearly manifested and communicated to the other spouse, before the spouses can begin to live "separate and apart." (Sinha v. Sinha, 526 A.2d 765 Pa. 1987). Therefore, separation can occur when one spouse leaves the marital residence with no intention of returning or when one spouse clearly communicates to the other their intention to end the marriage.

Some factors that the courts have historically considered when determining the parties' intent have been:

How much time the parties spend at the marital residence.
Whether the parties slept in the same room.
Whether the parties ate meals together.
Whether or not the parties took vacations and outings together and whether or not those outings were for the benefit of the couple or for any children.
Whether or not the parties gave the appearance that everything was fine only for their child's sake.
Whether the parties lived separate lives.
Whether the parties had sexual relations.
(Frey v Frey, 821 A.2d 623 Pa. Super. 2003)

However, it is unlikely that any one of these factors on its own would be sufficient to determine the date of separation. Instead, it is most important to look at the overall relationship and interaction between the spouses to determine when they separated under Pennsylvania law.

Although there is no such thing as a legal separation in the Commonwealth of Pennsylvania, if you are considering separation or divorce, a wide variety of factors must be considered in order to determine your separation date. Failure to do so could result in significant financial and other repercussions that may be surprising in the event a divorce action eventually ensues.