You may have heard people say that they aren’t divorced – but they’re separated. You may also be separated yourself, or considering separation. From the perspective of a non-lawyer, it may seem like it’s an alternative to divorce or a step along the way toward divorce. In reality, it’s difficult to tell what exactly the legal difference between divorce and separation is.
The Philadelphia divorce attorneys at Cooper Family Law are here to explain the differences between divorce and separation under PA law. Our family law attorneys in Philadelphia have decades of experience handling divorces and separations. If you or someone you know is considering divorce or separation, have them talk to a divorce attorney today.
Separation as an Alternative to Divorce
Some people do not want to get divorced. Even when their marriage is miserable or their relationship with their spouse is simply not working, they may refuse to get divorced. This is precisely the reason that Pennsylvania law allows one spouse to sue the other for a “fault divorce.” If one side refuses to agree to divorce, the only way to get the divorce may be to sue for it.
If both sides refuse to seek a divorce, they may opt to be separated instead. They could use this as a probationary measure, with hopes that they will get back together. Alternatively, whether for religious reasons, sentimentality, or personal preference, they may remain separated for as long as they want.
No matter what, a separation does not automatically turn into a divorce on its own. The phrase “until death” really matters; a Pennsylvania marriage does not end except by the death of one of the spouses or a divorce decree. No matter how long you are separated, you must actively go to court to turn it into a divorce.
Legal Effects of Separation
While you are separated, you are legally treated virtually the same as an independent, single person. For tax purposes, you may still be required to file as “married,” but can likely file as “married, filing separately” if you and your spouse maintain separate finances.
Though you are not legally “divorced,” Pennsylvania law makes distinctions for separated couples. Married couples share nearly everything – whether it be property they acquired together as a couple, a home they share, or children. Separation is the legal milestone that ends this agreement, even without a divorce.
Any property acquired between the date of marriage and the date of separation is considered “marital property.” This means that both spouses have access to it and, upon divorce, each gets an equitable share of that property. However, anything they owned before the marriage remains their individual, separate property. Anything acquired after separation is the same; this is part of the separate, individual property of each spouse. That means that you do not need to wait until divorce to start claiming things as your own – separation is what triggers this legal difference.
Separation also affects other things. Having a relationship with someone else, other you’re your spouse, is legally considered “adultery.” If you are separated, any relationships outside the marriage cannot be used against you as adultery grounds for divorce. Separated couples can also seek spousal support or “alimony” very similar to how divorced couples can. Lastly, since only spouses can own a home, together as “tenants by the entirety” in PA, your property rights might change upon separation.
Establishing individual rights, support payments, and the date of separation can be difficult. Having an attorney write a “post-nuptial agreement” or “separation agreement” can remove a lot of the headaches of separation.
Separation as a Step Toward Divorce
Legal separation accomplishes many of the same things that divorce does, with regard to property and money. This is, in part, because it is often a step along the path to divorce.
In Pennsylvania, there are two forms of “no-fault divorce.” These types of divorce allow couples to consent to a divorce, rather than sue the other to divorce them against their will. One form, a divorce by “irretrievable breakdown” under 23. Pa.C.S. § 3301(d), requires separation before marriage. If couples have been separated for two years, this form of divorce is available. Alternatively, if they begin separation the same day they file for divorce, they can wait two years. Having a separation agreement can establish a firm date the court can use to start the two-year separation period and make the divorce run more smoothly.
Filing for divorce and establishing the division of property and child custody rights is still complex, so hiring an attorney for your no-fault divorce is highly recommended.
Philadelphia Divorce Attorneys
The Philadelphia divorce lawyers at Cooper Family Law have helped hundreds of couples in the greater Philadelphia area with their divorces. If you are separated and need help understanding your legal rights, or are seeking a divorce, talk to an attorney right away. Contact our lawyers who offer consultations for new cases.
