February 9, 2017

A tale of a Two-Year Separation Case in Pennsylvania

After a full day trial over a dispute as to the date of separation court sides with…..(see below)


Wife and Husband were married in the early nineties and had one child from this marriage. Due to irreconcilable differences, Wife filed for Divorce.

It is Wife’s assertion that Husband is alleging a date of separation in 2014 in order to avoid the inclusion of the value of the marital assets between 2014 and 2016.  Husband’s contention that finances were the only reason Husband and Wife were “forced” to live together is without merit in light of his financial means.  The fact that Husband is so reliant on the parties being forced to live together when the Courts have opined that a common residence is not a bar to living separate and apart indicates that Husband is well aware that the parties displayed and demonstrated their usual behaviors and actions as a married couple and parents and is simply trying to cloud that fact with information that has no bearing on prevailing law.  There was absolutely no intent on Husband’s part to dissolve the marriage as evidenced by his behavior during the course of 2014 and 2015.  In fact, Husband located a marriage counselor at one point for them to attend which is something that a great deal of married couples do during the course of marriage.

Until their separation in 2016, the parties conducted their marital life in the exact same manner as they have always done.  Husband’s work schedule necessitated long hours and the parties always slept separately.  There is no dispute that Husband caused marital issues during a period of time and Wife was disappointed and angered which is more typical than not in the course of marriage and certainly a Husband and Wife may experience marital problems without being separated.  Nagle v. Nagle, 799 A. 2d 812, 819 (Pa: Superior Court 2002).



            At issue is the date of separation of Husband and Wife.  Husband filed a 3301(d) Affidavit attesting that the parties have lived separate and apart for a period of at least two year as provided under 23 Pa.C.S.A. § 3301(d)(1) of the Divorce Code.  Husband has alleged the parties separated in 2014.  Wife asserts that the date of separation, (if not the date that service of the divorce complaint


The Divorce Code defines “separate and apart” as “cessation of cohabitation, whether living in the same residence or not. In the event a complaint in divorce is filed and served, it shall be presumed that the parties commenced to live separate and apart not later than the date that the complaint was served.  23 Pa.C.S. § 3103.   The presumption is established upon the filing and serving of a divorce complaint unless an earlier date can be substantiated through the presentation of evidence confirming an earlier date.

“It is the party attempting to rebut the presumption has the burden of proof.” CW v. LV788 A.2d 1002 (Pa.Super. 2001).  Therefore, in the instant matter, Husband bears the burden of proving by the preponderance of the evidence that the parties ceased cohabitation on the date he asserts the parties separated.

The Court has defined “cohabitation” as “the mutual assumption of those rights and duties attendant to the relationship of husband and wife.” Britton v. Britton582 A.2d 1335 (Pa. Super. 1990) (internal quotation marks and citations omitted).  Additionally, a cessation of cohabitation must include an element of intent to cease the marital relationship.

Compare Mackey v. Mackey, 376 Pa.Super. 146, 545 A.2d 362 (1988) in which the parties had private living quarters, no public social life together, and had ceased sexual relations, the parties lived “separate and apart” and Britton v. Britton, 400 Pa.Super. 43, 582 A.2d 1335 (1990) in which the parties shared a joint checking account and had a social life as husband and wife.

Husband never demonstrated an independent intent to dissolve their marriage and, more importantly, did not manifest and communicate any intent to Wife.  For purposes of the Pennsylvania divorce statute, “Physical separation alone does not satisfy the separate and apart requirement. . . ” Sinha v. Sinha, 515 Pa. 14, 526 A.2d 765, 767 (1987). An independent intent to dissolve the marital union must be “clearly manifested and communicated to the other spouse.” Id.   In Thomas v. Thomas, 335 Pa.Super. 41, 483 A.2d 945 (1984), this court held that “cohabitation” means “the mutual assumption of those rights and duties attendant to the relationship of husband and wife.” Id., at 47, 483 A.2d at 948.  Thus, the gravamen of the phrase “separate and apart” becomes the existence of separate lives not separate roofs (emphasis added).  During the period of time Husband maintains the start of “new lives” there was no intent on his part to terminate the marriage.  In fact, the parties continued to have joint bank accounts, filed their tax returns together, went on numerous family vacations, attended social events as a couple, celebrated the holidays together, received birthday and anniversary gifts and even went food shopping together.  Until 2016, there had been no affirmative indication by Husband or Wife their intention to live separate and apart.  See Wellner v. Wellner, A.2d 1278, 1281 (Pa.Super, 1997).   Furthermore, and most importantly, in the context of how Husband and Wife always conducted their marriage, the parties maintained their normal and customary routine as Husband and Wife.

After a full day of testimony from several witnesses from Husband and Wife’s side, the courts ruled in Wife’s favor citing Frey v Frey to be the case on point.

Some factors which have been considered in determining the parties’ intent have been:

  1. How much time the parties spent at the marital residence.
  2. Whether the parties slept in the same room.
  3. Whether the parties ate meals together.
  4. Whether or not the parties took vacations and outings together and whether or not those outings were for the child’s benefit only.
  5. Whether or not the parties gave the appearance that everything was fine for their child’s sake.
  6. Whether the parties lived separate lives.
  7. Whether the parties had sexual relations.

Frey v Frey, 821 A.2d 623 (Pa. Super. 2003).  See also Mackey v. Mackey, 545 A.2d. 362 (Pa. Super. 1988).

It is important to establish the date of separation if there are non-marital assets or if the other party will not consent to the divorce.  If you want to make the date of separation clear, the best way to do so is by filing the divorce complaint.