In family law, we spend a great deal of time talking about parties living “separate and apart.” This date is very important since in most counties in western Pennsylvania, parties must be separated for two years to proceed with equitable distribution (check your local rules of court because some counties require less time. For example, Butler County only requires eighteen months of separation). Also, when defining the property that is subject to equitable distribution, we refer to property obtained between the date of marriage and the date of separation. Also the martial increase in value of premarital property from the date of marriage to the date of separation. The date of separation becomes very important when there is a large increase in value or the purchase of an asset right around separation. Often, issues arise because there is a great deal of gray area about when parties separated, especially if there has have been a number of attempts to reconcile.
Although people often take this to mean when one party moves out of the shared residence, this is not always the case. Although people often point to the day that someone moved out either willingly or as the result of a court order, the presumption in Pennsylvania is that the date of separation is the date that the divorce complaint was filed. However, this presumption is rebuttable. This means that the court will presume that the date that the divorce complaint was filed unless the parties agree otherwise or one of the parties can present evidence that persuades the court that separation occurred prior to the filing of the complaint.
The phrase “separate and apart” implies that the parties do not live in the same house anymore, but that is not always the case. A number of courts in Pennsylvania have acknowledged that parties can still be “separated” while living together. Typically, courts will take a holistic view of the circumstances to determine if the parties are separated while still living together. In cases like this, the court will look for a “meeting of the minds” when both were aware that the marriage was over and circumstances that suggested that the parties were living separate lives kind of like begrudging roommates in a dark comedy. Although parties will usually negotiate this issue with their attorneys, sometimes, courts will have full evidentiary hearings about whether parties are separated where judges will be responsible for dissecting the demise of a marriage.
If you are going through a separation and want more information about calculating a date of separation, contact our Western Pennsylvania office today.