Separate and Apart

Requirements to be Legally Separated

Many clients ask: "How do I become legally separated from my spouse?" By statute and case law in Pennsylvania, it requires two things:

  1. One or both of the parties express an intent to be separated (it must be a voluntary act), and
  2. You must live separate and apart. This does not mean complete physical separation, just not "cohabitation."

The Meaning of "Separate and Apart"

The separate and apart requirement for the granting of a divorce is not satisfied by physical separation alone. The separate and apart language requires both physical separation and a clear intent on the part of at least one of the parties to dissolve the marital ties permanently. That intention must be shown to have been present at the beginning of the uninterrupted period of living separate and apart.

This intent also must be clearly communicated to the other spouse; otherwise, many extended separations required by other circumstances could ripen to instant divorce without the salutary period of contemplation required by Pennsylvania during which the parties have an opportunity for reconciliation.

The Meaning of "Cohabitation"

"Cohabitation" means the mutual assumption of those rights and duties attendant to the relationship of husband and wife. The ties that bind two individuals in a marital relationship involve more than sexual intercourse. Parties may have lived separate and apart, despite the fact that they resided in the same home, where the parties had private living quarters, no longer had a public social life together, and ceased sexual relations. Such things as having a joint checking and savings account, going to hotels and checking in as "husband and wife," or just holding yourselves out to other members of the community as "husband and wife" are evidence a couple's desire and intent to be cohabitants.

An Example of Cohabitation

Where parties remained in the marital residence, but discontinued cohabiting, did not speak to each other for a year, communicated by leaving notes in appropriate locations within the dwelling and shared only limited common areas of the house such as the kitchen, their living arrangements constituted a separation.

A wife's testimony that the parties had sexual relations for periods of time during the two years that the husband claimed the parties were living separate and apart did not defeat the husband's assertion that the two-year period had been met.

Also, parties who, although living under the same roof but in separate parts of the house, have ceased all marital relations for a period in excess of the statutory minimum have met the requirement of living separate and apart. Moreover, parties who sleep in separate dwellings and are present in their home at the same time only sporadically are considered to live separate and apart.

Must Be a Voluntary Act

The separation by which the marital association is severed must be a voluntary act, with a mutual intent and purpose or because one of the parties, with or without the acquiescence of the other, intends to discontinue the marital relationship.

Example of the "Voluntary" Requirement

Where a husband sends money to his family, but is living separate and apart, this action does not rebut the fact that the marital relationship was irretrievably broken. To assert that the maintenance of an ongoing relationship between an estranged husband and wife in some way creates a bar to divorce under the statute, however, would encourage a party seeking a divorce to cut him or herself off completely from the spouse, which would militate against any and all possibility of reconciliation. It would be inconsistent, however, to allow a wife, who commenced the action to have her husband excluded from the marital domicile, to thereafter assert that the period of such an absence should not be considered in meeting the separation requirement time period.

Contact the Harrisburg family lawyers of Shaffer & Engle Law Offices, LLC if you have questions regarding legal separation and the separate and apart requirement. Call toll-free: 866-765-0706.