The Meaning of Legal Separation in Pennsylvania
Legal separation in Pennsylvania is a legal process whose main purpose is to divide a couple’s assets and liabilities with the potential for a reconciliation. Legal separation in Pennsylvania is not necessary in order to obtain a divorce, but it is a possibility if one spouse does not wish to be divorced. It is most often used if people want to have some legal status between married and single, but they do not wish to proceed with a divorce.
When the plaintiff or defendant files for a protection from abuse order, (PFA), their spouse or partner has to go to a court hearing. The judge during that hearing will issue a court order that says that you and your spouse are separated. A more permanent separation is obtained by filing a judicially-authorized separation agreement with the Court of Common Pleas. One can also file a Petition for Divorce with a Request for Equitable Distribution at the same time or immediately thereafter, but it is necessary to pay a filing fee and serve the other party by a process server or Sheriff’s department. If you do not know where the other party lives or refuses to be served, you can also use publication in a local newspaper to serve the divorce complaint . After the defendant is "served" by any means, one can obtain the divorce decree if there is mutual agreement. If the parties cannot agree, the plaintiff can obtain an Order from the Court authorizing limited discovery by written interrogatories and depositions as to the finances, custody disputes, support issues, and any other claims.
Legal separation has no statutory authority or grounds under Pennsylvania law. It is governed by general contract principles. The judge will review the separation agreement to be sure it is not unconscionable. Because the separation agreement is a contract, it may be modified by the Court if it is found to be unconscionable, either at the time the agreement was entered into or at the time of interpretation.
Legal separation is not a ground for divorce or a necessary step before divorce is granted. A divorce may be filed at the same time a separation agreement is entered into or after it is filed with the court. In fact, separation is not even mentioned in Pennsylvania’s divorce statute. But it is important to remember that "legally" separating will give a party time to allow the divorce action to fully ripen.
Filing For Legal Separation
In Pennsylvania, there are several eligibility requirements that must be met before a spouse can file for legal separation. These requirements include residency, jurisdiction, and duration of the marriage.
Residency
A spouse must either be a resident of Pennsylvania for six months before filing or have a strong connection to the state. For example, you might have been living elsewhere when you filed for legal separation, but return back to Pennsylvania frequently. Evidence of this can include bank statements, utility bills, etc. that bear your address.
Jurisdiction
In Pennsylvania, to file for legal separation, a spouse must file the action in the county where either the plaintiff (the spouse who is initiating the filing) or the defendant (the spouse that is being served the papers) has resided for at least six months immediately prior to filing. In some cases, the plaintiff cannot file in the family law division in the county where they currently live, because the defendant may have a pending action in that division, and they have to wait for their turn to finish the litigation before they can file their own.
Duration of Marriage
There are a few other eligibility requirements for filing for legal separation in Pennsylvania. The law states that you must have been married for at least 1 year before you can file for legal separation.
Filing For Legal Separation
When considering a legal separation, the first step is to create a separation agreement. This written document covers all of the issues your family currently faces: children, payments, spousal maintenance, and debt payments/ division of assets. Separation agreements are created between both spouses, however it is important to have the agreement reviewed by a professional, such as a mediator or an attorney. Once the agreement is put in writing and signed, it no longer becomes a contract, but rather a court order. In order for the agreement to be legally binding, it must be signed and filed with the appropriate court. The next step is gathering paperwork to establish residency, typically this includes a copy of the deed to your home, driver’s license, pay stub, etc. Then, a filing fee is paid and the correct case initiation documents are filled out. Once the forms are properly completed, they are filed with the Prothonotary clerk at the Prothonotary office. As far as the steps to file for legal separation in Pennsylvania, the process should be quite simple. Filing fees are $25 and must be paid when you form a new case, which is the legal term for your divorce and separation filing. Once your forms have been filed, you will receive a docket number. This identifies your documentation in the court system. After filing for a legal separation in Pennsylvania, it generally takes between thirty and sixty days to issue a divorce decree. More serious divorces take much longer, but a simple legal separation filing does not.
Content Of Legal Separation Agreements
The agreement should provide for a division of the marital property, including the existing value of the marital portion of the pension, if any, of either or both parties. In addition, the agreement should provide for future increments in the value of the pension as the amount earned becomes excluded from the marriage and therefore retained by the employee. The parties generally are able to agree that even though a portion of the marital asset will be the property of only one party, the portion of the pension to be used as a basis for equitable distribution will be the value of that particular asset at the time they agree to enter into the agreement.
A separation agreement must also include the arrangement for custody and various issues related to the care of minor children. The agreement generally provides that the parties have agreed upon the parenting schedule, the payment of child support, health care, extraterritorial travel for purposes of travel during holidays and vacation, school tuition and related expenses and various issues of the best interest of the children and the needs of each child .
A separation agreement must also provide for the payment of spousal support or alimony under circumstances where the court has been given jurisdiction to do so. A spousal support and alimony order is retroactive to the date of filing. As such, it is important for the parties to negotiate whether the parties wish to be commencing the payment of such support for the period of time prior to the date of the execution of the agreement. If the parties have separated and one is in receipt of SSI or other public benefits, it may not be advisable for the parties to commence payment of alimony so as to assure that there is no cliff effect caused by the payment of the alimony. From the date of filing, in the absence of an agreement or stipulation otherwise, an obligor spouse will be under the obligation to pay the appropriate statutory guidelines amount of support for any minor children and/or spousal support.
Effect Of Legal Separation
Once a legal separation is filed for, the parties remain married with all the attendant legal and financial implications that come with being married in Pennsylvania. A legal separation does not mean that either party can or should remarry. It does not mean that the parties have even agreed to divorce. In fact, either party may continue to use the other’s health care insurance and/or file tax returns together. The rights to property acquired during the marriage do not change and any child support issues or custody issues still must be resolved by the parties or the Court. Unfortunately, this leaves open some difficult financial questions for parties who are now living separate and apart on a temporary basis.
If the parties have children and one party is keeping the marital residence and the other will live somewhere else, they will normally agree on temporary support and perhaps a temporary child custody schedule. These matters can be determined by agreement or, if the parties cannot agree, they can ask the Court to impose a temporary schedule.
In the past, we found frequent instances where the husband would move out of the house and no longer pay the mortgage. The wife would, therefore, stop paying the mortgage on her own, repair the marital residence, buy new furniture, buy all the groceries, buy clothing for the minor children, and make all of the house payments. The husband realized, however, that he could not be found in contempt and would not have to service the outstanding note until the matter was decided at a full trial, saving thousands of dollars. He simply delayed. Many times, the husband would even file bankruptcy during the pendency of the divorce and discharge his responsibility for equity in the home. This inequity was common practice and parties were willing to accept the long delay and to spend thousands of dollars in attorney fees to secure a walk-away from the note and mortgage. Under current practice, however, the husband will have a long delay in the immediate determination of his equitable share in his home and may still owe his spouse significant arrears for those months and years when he failed to participate as an equitable spouse.
Pennsylvania is not a community property state. In a community property state, such as Wisconsin or California, all property acquired during the marriage belongs to the community and must be divided equally, 50/50. In a Pennsylvania divorce proceeding, property acquired during the marriage during the marriage is divided on an equitable basis. In Pennsylvania, assets are not divided equally but rather equitably. Once the parties are legally separated, they cannot commingle their property. For example, if you moved out of the house with your personal belongings and then visit your spouse and buy some groceries for the week, you must reimburse your spouse for any groceries you purchased. If your spouse had paid for groceries with joint funds from your joint bank account, you must reimburse your spouse from your individual funds.
Getting Legal Help
When filing for legal separation in Pennsylvania, seeking the guidance of a family law attorney is essential. This professional experience allows individuals to navigate the complex legal landscape surrounding separation issues and establish a secure footing in pursuing their legal interests.
One of the primary ways an attorney can be of assistance is by providing new perspectives and insight into legal options. They can help individuals understand the various methods they’re able to pursue resolutions, and what steps must first be taken before obtaining a formal Divorce Decree.
When separating couples have any degree of property or children in common , effective communication becomes even more difficult. A family lawyer can act as a mediator between spouses and help them understand the legal implications of every decision throughout the course of legal separation.
Legal procedures in Pennsylvania are lengthy and often include waiting periods and the appointment of specific legal officials within the court. A lawyer is familiar with these processes and can properly advise individuals on their next steps based on the specifics of their situation.
Legal separation requires an extensive amount of documentation that must be submitted to the court system. A family lawyer is required to file all documents for the separation and manage the various expenses associated with the process, including additional legal fees and the costs associated with enforcing marital debt and other background checks.