DIVORCE 101 - SHOULD I STAY OR SHOULD I GO NOW - Part 1

I mentioned in a blog post earlier this year that the beginning of the New Year tends to bring with it new divorce flings and cases. While the actual filings peak in March of the year, as I write this I am sure there are people who have been contemplating separating from their spouse or who plan on talking with a lawyer in the near future.  Whether or not you separate is a huge decision.

When you separate can have huge ramifications in potential divorce litigation.

When and how you separate, i.e., the day you “stop living in a husband and wife-like manner,” plays a key role in the distribution of your marital estate, entitlement to support, and the entry of the divorce decree. 

Here are a couple of things to think about if you are thinking about going.

The date of separation defines marital property. 

As I talked about in prior posts, during your marriage, the assets you acquire (whether they are in your name, your spouse’s name or in joint names) will be subject to equitable distribution, barring an agreement to the contrary. 

Your date of separation designates when assets stop being marital and start being separate. 

Generally, income you earn after separation is yours to do with as you please, as are any assets you acquire with your post-separation income.  The date of separation is the dividing line between the two.  It can be crucial in whether an asset is included in the marital estate and subject to equitable distribution or not.

The date of separation also helps to determine the value of non-marital assets.  

As I have talked about, only the appreciation in value of non-marital property is subject to equitable distribution.  (Unless you have already transmutated it into marital property.) This marital portion is the growth on the asset from your date of marriage to your date of separation, or to the date of distribution, whichever is less. As such, the date of separation will help determine the value of these non-marital properties as well.

It determines when you can get a Divorce Decree.

The date of separation also starts the clock ticking on when you can get your actual divorce.  If everybody is in agreement that they want a divorce, you still have to wait for a period of 90 days after a Divorce Complaint has been served to request it.  However, if one party does not want a divorce, Pennsylvania has a two year separation waiting period. This means from the time you separate until you can push things ahead in Court, you must wait two years if your spouse objects.   That two years starts not when a divorce complaint is filed but when you separate. 

That’s just the tip of the iceberg. When and how you separate my also affect your support obligations/rights, when you get to see your children, and who retains the marital home when all is said and done. I will cover these topics and “how do you separate?” in my next post.