The Date of Separation: What Is It and Why Is It So Important?
A prospective client walks into my office and tells me, “My wife and I have been fighting for the past six months. Last week, after our arguments became unbearable, I left our house and have been sleeping on my sister’s couch. My wife is telling everyone that we broke up, so I want a divorce.” While discussing the rest of the details surrounding the prospective client’s story, I ask him a number of questions to determine whether he and his wife are separated. After I determine he and his wife are in fact separated, I ask him a few more questions to determine their date of separation. The prospective client stops me and says, “We broke up, that means that we are separated. Please just help me get divorced.” I then proceed to explain to him the importance of establishing the date of separation.
What Is the Date of Separation?
Pursuant to 23 Pa.C.S. § 3103, spouses are considered “separate and apart” on the date they stop living together as a married couple. Unfortunately, the date of separation is not always easily determined. In the story above, the fact that the prospective client “moved out” of the marital residence may or may not be sufficient enough to determine that he and his wife are “separate and apart” under § 3103.
In one case, the parties were not considered to be “separate and apart” because although they lived in separate homes, the husband regularly visited the wife at her home, they went on vacations together, and they continued to have sexual relations. Wellner v. Wellner, 699 A.2d 1278 (Pa. Super. Ct. 1997). The Court reasoned that the parties were not separated because their actions inferred that they did not intend to live separate and apart. Id. It was not until the wife told the husband to not return to her home that the Court considered them to be “separate and apart” under § 3103. Id. Conversely, in another case, the parties were considered to be “separate and apart” because they ceased having sexual relations, ceased marriage counseling sessions, and ceased entertaining guests and socializing as husband and wife. Gordon v. Gordon, 647 A.2d 530 (Pa. Super. Ct. 1994).
In some cases, although the parties continued to live under the same roof, the Court considered them “separate and apart” for the purpose of establishing a date of separation. In one case, even though the parties took vacations together for the benefit of their daughter, the Court determined them to be “separate and apart” because they slept in separate bedrooms and ate almost all of their meals separately. Frey v. Frey, 821 A.2d 623 (Pa. Super Ct. 2003). In another case, the Court considered the parties to be “separate and apart” because, although they continued to live under the same roof, they had not participated in sexual relations for over three years and continued to sleep in separate beds. Mackey v. Mackey, 545 A.2d. 362 (Pa. Super. Ct. 1988).
In one other case, the Court considered the date the wife obtained a protection from abuse order against the husband as the date of separation because the parties lived separate and apart after that date. Teodorski v. Teodorski, 857 A.2d 194 (Pa. Super. Ct. 2004).
In any event, a Court will presume that the parties are “separate and apart” and determine the date of separation as the date a divorce complaint is served on one party. A Court may also consider the date one party engages an attorney as evidence of the date of separation.
Why Is the Date of Separation So Important?
Now that we have discussed how a Court will determine the date the parties are considered “separate and apart”, we will now explore why the date of separation is important.
The date the parties are considered “separate and apart” under Pennsylvania law is significant for two principal reasons: 1) It commences the waiting period for obtaining a divorce under Pennsylvania law; and 2) It establishes the date in which assets or debts are no longer considered marital.
The first important reason to establish the parties’ date of separation relates to obtaining a divorce. As we examined in another post, “How Long Will It Take Me to Get Divorced in Pennsylvania?”, the laws of our Commonwealth designate time periods for which the parties must wait prior to obtaining a divorce. Currently, once the date of separation is established, the parties must wait two (2) years before a Court will grant them a divorce. However, because of a change in Pennsylvania law, as of December 3, 2016, once the date of separation is established, the parties must wait only one (1) year before a Court will grant them a divorce.
The second important reason to establish the parties’ date of separation relates to categorizing the parties’ assets and debts as martial or non-marital. In general, and subject to many exceptions, under 23 Pa.C.S. § 3501(a), marital property is defined as “all property acquired by either party during the marriage” through the date of separation, as well as “the increase in value of any non-marital property” during the marriage through the date of separation. Further, the definition of marital property also includes the decrease in value of any non-marital property during the marriage through the date of separation.
For example, the marital residence, automobiles, investment accounts, etc., acquired from the time the parties are married through the date the parties are considered “separate and apart” are considered marital property. For example, if the wife owned a home prior to marriage and the parties moved into the home after the marriage, any increase or decrease in the value of the home following the date of marriage and prior to the date of separation, is marital property. Therefore, if the home was worth $100,000.00 on the date of the marriage, but its value increased to $125,000.00 by the date of separation, the $25,000.00 increase is considered marital property.
Another example exists where the husband owned an investment account composed of many different stocks with a total value of $5,000.00 on the date of marriage. The wife’s divorce complaint determined the date of separation to be October 20th, when the investment account was valued at $10,000.00. However, the husband determined the date of separation to be October 10th, when the account was valued at $7,500.00, which was prior to one of the stocks in the investment account reporting its most successful third quarter in company history and increasing the value of the account by $2,500.00. If the Court accepts the wife’s date of separation of October 20th, then $5,000.00 of the husband’s premarital investment account will be considered marital property. However, if the Court accepts the husband’s date of separation of October 10th, only $2,500.00 of his premarital investment account will be considered marital property.
Our final example relates to marital debts. For instance, credit cards and mortgages obtained after the date of marriage and utilized through the date of separation are considered marital property. Further, in the case of a credit card obtained by one party prior to marriage, any increase or decrease in the balance of the credit card from the date of marriage through the date of separation is considered marital property.
In conclusion, determining the date of separation is crucial to obtaining a divorce and establishing marital property and its value. As you can anticipate, establishing a date of separation can be a highly litigated issue. Simply moving the date of separation a few days forward or backward can significantly alter the value of the martial estate. Therefore, if you dispute the other party’s determination of the date of separation, you must immediately contact an experienced Pennsylvania Family Law attorney to enforce your rights in the marital estate.
We at the Law Offices of Max C. Feldman are here for you. Call us at (412) 262-6161 or email us at firstname.lastname@example.org for a free consultation as soon as you are ready to discuss your divorce or equitable distribution matter.
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