Dividing the Practical Differences Between Legal Separation and Divorce
Legal separation and divorce are not the same thing in Pennsylvania. Divorce is the dissolution of the marriage itself – you are no longer legally married to the other party, and will go through the equitable distribution process, or settlement negotiations, to split up everything you own together.
Legal separation is when you and your spouse agree that you really should not be together anymore. It may be just a truce while you figure things out, or it can be a whole process in which you legally determine how much money will go to which party every month , who will pay what bills, where the children will live, and any other details that might come up. You are still legally married, but you have created some distance while you work out your differences.
In Pennsylvania, all divorces start out as separations. You can file for legal separation or then later want to change it to divorce, but just because it’s called a ‘legal separation’ doesn’t mean you are separated in the legal sense.
For more information about this process, contact the attorneys at The McKeever Law Firm.
How to Pursue a Legal Separation in Pennsylvania
In Pennsylvania, the law does not recognize separation, and it equally does not delineate the standards by which one is legally separated from his or her spouse. However, to move forward with a divorce in Pennsylvania you must be separated from your spouse. One of the most common ways for a couple to be considered separated in the eyes of the law in Pennsylvania is to move out of the same residence. If you do move out of your Newcastle, Pennsylvania home, be sure that you document the date you left the marital abode and the action that you took to let your spouse know you were doing so. A text message or an e-mail is sufficient documentation. If you still live together and one spouse has moved to a bedroom in the home, you may still be considered separated in Pennsylvania. A willful and deliberate intent to be apart is an essential requirement to meet the standard for being separated. Simply putting space between each other inside the home may not be considered enough.
Even if you have chosen to stay at home, legal separation can proceed through court. You may also choose one of two other methods. The first is to enter into a written separation agreement, and the second is to file for separate support. Regardless of which option you choose, you must stop cohabitating with your spouse. However, you should know that merely living separately alone for living separately does not meet the requirements for a legal separation under Pennsylvania law. A separation agreement can help set the terms with your spouse and offer ways to resolve your issues amicably. A separation agreement should include a plan for dividing abuilding that you both own, possibly provide for alimony, explain child custody and child support, and discuss how your bills will be paid until the divorce is finalized. Any agreement may also prevent a spouse from selling property while the divorce is pending, including a home or other property that you own together. First, however, you should enter into a written separation agreement, which you can then take to a mediation service or a family therapist for assistance in reducing the acrimony and also the expenses that occur with litigation. Once your agreement is finalized, it must be enforced by a judge before it can be used in any way to finalize your divorce. Filing for separate support is a way to get temporary alimony before the divorce is finalized as well. In this case, you should ask a lawyer about the process to follow to get your support matters before a judge. In this way, you can obtain money for living expenses and children’s directly from a judge, rather than having to negotiate your expenses and directly request your spouse to pay for them. In most cases, obtaining a legal separation in Pennsylvania requires a written agreement and a subsequent filing with a judge to make the separation matter valid with the court.
Your Rights And Responsibilities During A Legal Separation
Following the filing of a Complaint and during the pendancy of the matter the parties are responsible for the support of their children; they are responsible for debt payments that are their responsibility under law or under the terms of a valid agreement/judgment; they are responsible for paying any bills that could have been paid when the parties were together and they are required to equitably divide their property.
For example, if a party depended on their spouse to handle the household budget, under the theory of necessaries, that party (the obligor) must pay for necessaries in order to protect the other party’s credit. Hence, the obligor must reasonably pay mortgage payments, rent, utility bills, and credit card or phone bills when those amounts come due.
Every divorce is different. While the law provides guidelines for the calculation of support and alimony, the parties themselves will determine the contents of a property settlement agreement. If the parties cannot agree, an equitable distribution hearing may be necessary, where the court will fashion an equitable distribution award based upon certain statutory factors. It is important to understand that equitable does not mean equal.
Division of assets, debts and liabilities can be extremely complicated. If the parties have one home, two homes, significant savings or investment accounts, real estate, real estate investment trust (REIT) interests, stock options, pensions, and/or IRAs, this division can become incredibly involved. If the parties have other sources of income, such as rental properties or a business, these other sources of income also need to be addressed because at least one of the issues before the court will be distribution of all assets, regardless of how or where those assets are titled.
The Benefits Associated with Legal Separation
Legal separation can provide significant advantages to couples who are unsure of divorce and want to take time apart without ending the marriage. Some potential advantages include:
Strong Legal Protection
When a spouse takes a job in another state, considers moving in with a new partner, or has an affair, the other spouse may seek legal protection when filing for divorce. If you feel your spouse is destructive, you can have him or her removed from the home and retain primary custody of your children (assuming there are no safety issues).
Property and Financial Issues
A legal separation agreement can also help resolve property issues before divorce proceedings begin. The decision to separate gives you time to agree on alimony terms and even file a claim for spousal support—although pennsylvania law does not require couples to be separated for a period of time before filing a separation agreement.
Financial independence
On one hand, legally separating involves expenses that you would not face if you were simply remaining married but living apart. These include the filing fee for a separation agreement and the attorney’s fees for preparing the agreement. However, the separate lives you live during a legal separation may reduce certain expenses in the short term. For example, if your spouse moves out, you will not have to cover that person’s bills and needs in addition to your own.
Independent decision-making
Couples who decide to separate often report gaining newfound independence, freedom, and confidence following a legal separation. After all, while they are still married, there is no requirement that they stay in the same house, in the same city, etc. Most likely, their close friends and families will encourage this new independence, which allows spouses to forge out new lives for themselves during the next chapter of life.
Better emotional well-being
Unfortunately, some couples get back together again after a legal separation. This is generally based on emotional maturity and improvement, with both spouses agreeing to work on certain issues that caused the breakdown of their relationship the first time around.
A legal separation agreement can help with any problems with a spouse—even alcoholism, infidelity, financial issues and other problems. In going through separation proceedings, many couples gain the insight to return to each other better than ever before.
Considerations Surrounding Finances and Property In a Legal Separation
The answer to the question "How does legal separation impact financial arrangements between spouses?" can be a bit tricky. That’s because when we talk about "legal separation" what is really meant is the concept of spousal support.
In Pennsylvania, the term "legal separation" has no meaning at law. You are either married or you are not. But once one spouse leaves the house, it becomes necessary for the legally separated spouse to have his or her spouse contribute to the support for the income of the non-leaving spouse.
So how does this work? When one spouse files for divorce in one of our Harrisburg area counties such as Dauphin, Cumberland, Adams or Lebanon that is then served on his or her spouse, the one spouse becomes the "Plaintiff" for divorce. The affected spouse becomes the "Defendant" for divorce.
Leaving aside the other requirements that must be met for the divorce complaint to be filed, the divorce complaint triggers the need for one of the spouses to support the other spouse. The process begins by the serving of a "Notice of Alimony Pendente Lite Hearing", known as a NADL hearing. At this hearing, a master appointed by the court will hear testimony from both parties (or lawyers) about what their incomes are, what their expenses are, and figure out what the fair amount of support should be paid by one spouse to the other.
Hopefully, the hearing can be amicably resolved by agreement of the parties so that they walk out that day knowing what support amounts will be paid, and what they need to pay or collect so that the family finances will be in order.
In a great many cases, however, the spouses may not be able to agree. There may be animosity between them that prevents a full and complete exchange of financial information. In those cases, the court will order extensive financial disclosures so that each side can know the financial position of the other. Sometimes the distrust is such that a forensic accountant must be hired to trace assets to determine their value.
While we all know that a marriage is a contract between two people, the contract becomes more like a business partnership when it breaks up. The end of the relationship also requires that the marital assets and debts be apportioned equitably between the spouses, and that the future income stream of the spouses be adjusted to allow them to move forward with their lives separately . This is where the practice of family law encounters that of business law.
The assets and debts of the spouses are determined to be "non-marital" or "marital" by date. When the parties acquired certain assets and debt by the date of the divorce complaint will determine whether it is non-marital or marital.
There are many rules to the division of assets and debts, but in general, assets acquired during the marriage (with some exceptions), as well as debts from the marriage, will be divided by the court in a way that the court feels is fair and equitable. In Pennsylvania, the law recognizes that equitable does not mean equal.
For example, suppose a couple has the following marital assets: a home worth $200,000, a bank account with $10,000 in it, and a 401(k) with $50,000 in it. The couple has also accumulated $10,000 in medical debt over the years. If that spouse earns $100,000 a year and the other earns $25,000 a year, a master-appointed in the NADL hearing could reasonably conclude, after a review of their incomes and expenses, that the Plaintiff spouse should pay the Defendant spouse $1,200 per month in support. If equitably divided the assets and debts would be: Wife gets the house subject to the mortgage, husband gets the bank account, wife gets $5,000 in part of the divorce, husband gets $25,000 of the 401(k) in part of the divorce, and the wives takes half of the remaining medical bills, plus the obligation to pay the payments on the marital residence, valued at $200,000, subject to a $175,000 mortgage (leaving the Wife with an equity of $25,000, and an ongoing debt obligation to pay off the mortgage). As a result, Wife would start off with $55,000 ($25,000 + $10,000 + $20,000 equity in the house) and Husband would start off with $42,500 ($10,000 + $12,500 + $20,000).
But, there is one other factor to consider: The Persons of Wealth Rule. This rule states that, other things being equal, the spouse who earns more should contribute more to the marital assets. As a result, the distribution might be made more currently advantageous to Wife, who contributes more, even though the ultimate distribution falls more in line with Wife’s earning power.
Therefore, spousal support can bridge the gap between the spouse who earns more and the spouse who earns less. But it can also mean that the true division of assets occurs during the marriage, and the division at the time of divorce is more evenly divided between the spouses.
Child Custody and Legal Separation in Pennsylvania
In Pennsylvania, a legal separation does not codify a couple’s custody arrangements. However, voluntary separation agreements establishing clearly defined custody and visitation rights and periods can be enforced as "temporary" orders until permanent orders are established. In other words, they carry the full force of the law in Pennsylvania, although you need to file for legal custody through the courts for the separation agreement to have the force of law.
In Pennsylvania, judges are again required to consider the best interests of the child as they apply to legal separation and child custody arrangements. They cannot consider marital misconduct. The judge will look at many different factors when determining what the best arrangements are for the children, including:
All of these factors will be taken into consideration when determining which parent gets primary physical custody and which parent will have periods of physical custody each week or month with the children.
Generally, if the parents have not already worked out an agreement prior to filing with the courts for legal separation and/or custody, the judge will appoint an attorney for the children, called a Guardian ad Litem. This is the attorney’s job to act as an advocate for the children’s best interests and desires. It is not the job of the Guardian ad Litem to act as a "therapist" or judge for the children. The Guardian ad Litem should conduct an investigation and recommend to the courts what the best interests of the children are; but they do not have authority and power over the judge in making the custody decision.
A Guardian ad Litem for a child can legally go into their home, speak with teachers, take the children on an outing, etc., to get to know them and establish this information for the court. The courts will then use the information contained in their report, along with any testimony from the Guardian ad Litem and parents, and make a decision regarding custody and visitation.
Transitioning From Legal Separation to Divorce
Unfortunately, many separations do not end with the parties reconciling. They may hear the phrase better in or out of the box or simply want to end the marriage. A legal separation may be the first step in a long, sometimes convoluted process to end a marriage that began many years before. In these circumstances, if the parties have been legally separated for two years, one of the parties can file a complaint for divorce. This will officially end the marriage and will complete the divorce process.
The two-year period may sound like a long time, but the length actually depends on the marital assets that must be divided, and how amicable the parties are during the separation. If both parties agree on all of the terms of the separation, and there are not many assets to divide, the divorce process can go much quicker.
If, however, the parties do not agree on all the terms of the separation, or if there are significant assets to divide, the divorce process may take many months and sometimes years to reach completion.
In Pennsylvania, as long as the parties have been separated for two years and filed the necessary paperwork, the court will grant the divorce . The court will then divide the marital assets, whether or not the parties agree on the division.
Having an agreement during the separation will make things much easier in a divorce proceeding, even when there is a dispute. Courts may include the terms of a separation agreement in the final divorce decree.
It is important to remember that getting a legal separation does not by itself result in a divorce. Many people get legal separations thinking they will automatically be divorced in a year or two. This is not true, because a legal separation is really just a short-term solution to a long-term problem. While many people have fought between their lawyers in a legal separation, when it comes time to bring the paperwork to court to finalize the divorce, they may become more amenable to their spouse. If they cannot reach an agreement about dividing their assets, however, the court has final say on the division. At that point, it is in their best interest to move through with the proceedings instead of dragging it out longer than necessary.
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