DIVORCE 101 - SHOULD I STAY OR SHOULD I GO NOW - PART 3

So how do you show you’re separated, you ask?

Well, what is separation can be very tricky. It is a fact specific determination that is not terribly well defined. The rule is that you “stop living in a husband and wife-like manner.” (The quote is old. This works the same way for same sex couples now that same sex marriages are recognized in PA.)

Whether you “are living in a husband and wife-like manner” is very specific to an individual couple, as you look at how your lives have changed since the alleged separation date. The most important fact, though, is did you both know you were separating? If you move to another state to get your master’s degree, and a year in decide you want a divorce, you didn’t separate when you moved for school because neither one of you knew you were separating at that point. If you have this epiphany a year in, but don’t tell your spouse for another year, guess what, you just now separated (two years after you moved) because you didn’t realize you were separating when you moved there, and while your feelings may have changed a year earlier, you didn’t tell your spouse that until now. Everyone in the relationship must be on notice that the relationship is ending. Notice can be verbal or in writing.

Under law, the date of filing a divorce is a presumptive date of separation, but either party can present evidence they separated earlier or later if things move forward in court. That’s were a written notice of separation can come in handy.

However, actions speak louder than words. If you say “separation” but keep acting like spouses, well, then you might not have separated. The words themselves aren’t magic and the Court will look at what you have been up to since you said them.

Nonetheless, nothing is getting done over one side’s objection until the two year waiting period has been met. If you are thinking about separating from your spouse, I highly recommend that you speak to an attorney to know your rights and obligations in the event of a separation within or outside of the home, and how to go about letting the other side know that you are, in fact, separating.

As I always point out, separation—even the very beginnings of separation—can impact every single aspect of your life, will impact you legally, financially and emotionally.

It is important to get the correct information to know what to expect. Consider speaking with a counselor, either individually or as a couple, before facing these changes. Be sure of your feelings. Once you are sure of your feelings (or at least pretty sure) talk to a lawyer to get some idea of what to expect from separation and/or divorce.

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DIVORCE 101 - SHOULD I STAY OR SHOULD I GO NOW PART 2

SHOULD I STAY OR SHOULD I GO NOW  - PART 2

Separation also affects support.

If you are talking about physically separating, and you are no longer sharing the household expenses, this can trigger a right to support even if a divorce complaint has not been filed. That can include spousal support for a lower wage earner and child support depending upon your respective incomes and custody arrangement. While two parties are still physically in the same home, it is largely assumed that there is not a need for support so long as nobody is being left completely penniless and the bills are getting paid.  When you stop being under the same roof and this stops being the case, you can find yourself facing a complaint for spousal support and/or child support.

It is not necessary to stop living in the same home to establish separation, so you do not necessarily have to move out of your home; therefore, spousal and child support might not be triggered. (But really awkward living arrangements will be.)

Support rights change if someone files for divorce.

Once a divorce gets filed, a party can ask for support even if everyone is still in the same house. Heck, you may have to pay support even if the other side doesn’t need it (i.e. you can get support you don’t even need during the period of separation).  This support for a spouse that comes into play after a divorce is filed but before it is finalized is called alimony pendente lite.

The previously discussed two year separation period can be used for a party to obtain support during separation, and they might not be entitled to it after a divorce (or even during separation).   The support you can receive while you are separated or while a divorce is pending is calculated differently than alimony, the type of support you can receive after divorce.  A party may be able to use the two year period of separation to collect these funds, even if they would be capable of self-support after the divorce and not an alimony candidate.   Additionally, while a party may have had an entitlement issue barring them from receiving spousal support, this doesn’t apply to alimony pendente lite.

So what is an entitlement issue?

This does not refer to someone thinking they are entitled to get everything in this world (though that type of thinking might be a reason to separate). If you haven’t been a faithful spouse, if you abandon or abused your family, or if you aren’t separating for the right reasons, you may be barred from receiving spousal support.     If you physically separate and there is no divorce, a party may not be entitled to the support they need if they don’t have clean hands. If you leave for the wrong reasons, you may be leaving behind your support claim as well.

Separation will also trigger custody issues.

Once you have separated, you can file for custody.  The court can even fashion an order while the two of you are still living under the same house but it will not go into effect until you are living in separate homes.  Whether you are separated in the home or out of the home will play a major role on how often you can see your children.  Continuing to reside in the home likely means seeing your child every day, which is almost guaranteed to be at least twice as much as you will see your children if you move out. 

However, continuing to live with your significant other post-separation is not for everybody. It can present a host of problems like fights about expenses, potential PFA exposure, etc.

If you leave are you really giving up your house?

Most often, yes.  Whether or not someone physically leaves the marital residence can affect equitable distribution in that in most cases the party who continues to reside in the home during separation and pendency of the litigation tends to be the party who receives the home at the time of equitable distribution. 

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