In 1980, the Divorce Code was amended to add no-fault divorces, allowing one spouse to obtain a divorce without the consent of the other spouse. Initially, this no-fault divorce required a three year separation period. In 1988, that separation period was reduced to two years. On October 5, 2016, Governor Wolf signed Act 102 into law, reducing the waiting period to one year (effective in 60 days). This change now allows one spouse to pursue a divorce after just one year of separation without the consent of the other spouse.
In Pennsylvania, separation, for purposes of divorce, is defined as living separate and apart. Section 3103 of the Divorce Code further defines “separate and apart” as the “cessation of cohabitation, whether living in the same residence or not.” Sometimes, the spouses will agree on a date of separation (for example, the date one spouse moved out of the house or moved out of the marital bedroom) but there are occasions where the parties do not agree. In these situations, a judicial decision may be required to set the date. The date of separation is important not just for calculating the separation period in a no-fault divorce, as described above, but also for the identification/valuation of certain marital assets.
In making a determination on a date of separation, the fact-finder (the judge or divorce master) will look at all of the circumstances of the particular situation. Generally, the test is whether the parties are still acting or living as husband and wife. Some factors that a fact-finder may consider are:
- Whether the parties eat meals together,
- Whether they do household chores with or for the other party (cook, clean, laundry etc);
- Whether they spend holidays together;
- How or if the finances are divided;
- Whether they vacation together;
- Whether they go out together (meals, office parties etc);
- How they speak about the other spouse to third parties;
- Whether they are in counseling or therapy together.
The analysis of these factors (and others) is sometimes complicated by the presence of children, in that the fact-finder will consider whether the spouses are acting as a cohesive unit only for the benefit of the children (i.e. if they spend holidays together only because of the children) rather than because they still identify as husband and wife. Generally, no one factor alone is enough to definitively identify a separation date. However, the fact-finder will look to all of the factors applicable in making a determination. The separation date is often crucial in divorce matters and can make a significant impact in the length of the divorce process and the financial distribution of assets.