Legal separation isn’t available in Pennsylvania. If you are no longer living as a married couple, divorce is the only option if you want the state to recognize your separate status legally. However, until you file, you can take certain steps to ensure that your separation is well-established. First, you must stop living as a couple, starting with not sharing a marital bed. Second, other people need to know that your marriage is over. If you keep your separation a secret, your separation may come into question.
Living Separate and Apart
In Pennsylvania, you’re either married or you're not. That means you can't obtain an official order of separation from a Pennsylvania court. However, you can establish separate lives, whether in preparation for divorce or for other reasons. Pennsylvania law defines separate and apart as the "cessation of cohabitation, whether living in the same residence or not," so you can live under the same roof and yet not live as a married couple. In this situation, it is probable that at least one of you has expressed the desire to no longer be married. You also probably do not share a bedroom or have a sexual relationship, and have communicated to others that you are no longer a couple.
Date of Separation
When you separate from your spouse, the date of your split must be obvious and easy to ascertain, because the court uses this date of separation to determine when your responsibilities as a married couple ended. If this date is uncertain or inaccurate, it could have a huge impact on how the court apportions debt and other expenses between you and your spouse at divorce. If disagreement exists concerning this date – or if disagreement exists that a separation has even occurred -- the court will look for an indicator of the separation, such as the date when one spouse moved out of the home.
If you and your spouse are on good terms, you may wish to establish a settlement agreement, especially if you plan to file for divorce. In this agreement, lay out your agreed-upon terms for property and debt division, custody and visitation, spousal support, if any, and child support. This agreement will serve as a contract between you and your spouse, and is enforceable in a court of law. However, if you do file for divorce, you would submit this agreement to the court for review. Provided the terms are fair, the court will approve the agreement and incorporate it into the final divorce decree, creating an official court order. This means that you or your ex-spouse can return to family court and seek enforcement of the order if one of you fails to meet your obligations.
If you file for divorce, the details of your separation will be relevant to certain aspects of the proceedings. One area is on your divorce petition where you must state your grounds for divorce. Along with fault grounds, such as adultery, Pennsylvania provides a no-fault option, which doesn't require either spouse to blame the other for the marriage coming to an end. Instead, you can cite mutual consent as your reason, which requires only that you submit an affidavit that confirms the marriage is irretrievably broken. If your spouse doesn't want the divorce, you can still file, citing irretrievable breakdown of the marriage, which requires couples to live separate and apart for two years.
If you and your spouse are unable to reach a property settlement agreement, the court will have to make this determination for you. Pennsylvania is an equitable distribution state, which means that it divides property between divorcing spouses in a manner that is fair, although not necessarily equal. However, it can only divide marital property, which is most property that either spouse acquired during the marriage. To that end, the court will use your separation date to determine which property qualifies as marital property.