From many sources in the course of our lives, such as other people, news broadcasts, TV and movies, we all hear the term “legal separation”. First of all, such sources are not a reliable means of getting accurate information. I was admitted to the practice of law in 1974 and, since then, I have literally never heard of anyone getting accurate information from something or someone other than an experienced lawyer when it comes to our divorce law. That said, even lawyers may decide what they, individually consider “separation”. I’ll get back to that in a minute.
Legal separation? As opposed to what, “illegal” separation? In Pennsylvania, spouses are either living together or not. Both situations are quite legal. Moreover, our law no longer officially provides for the filing in court for legal separation. If one’s situation calls for it, one may move out and live elsewhere. I’ve had folks tell me, “If I do that, my spouse said my spouse will ‘get me’ for desertion”. Of course, those folks do not know what is meant by that. What results are possible if you leave? Desertion is a ground for a fault (as opposed to no-fault) divorce, but only after you’ve been gone for a year. So if “getting” you means your spouse will file for divorce and end the marriage, well, is that not what you wanted when you moved out? Naturally, there could be financial ramifications if your situation calls for it. So, speaking to an experienced lawyer BEFORE you move out would be wise. The long and short of it is this: If you are not living at the same place and are married, you are separated, and that is neither “legal” nor “illegal” under our law.
Getting back to what can pass for separation: There have been cases wherein the couple was found to have been considered living “separately and apart” even though they lived under the same roof. One example was a situation where the husband lived in the basement and had his own door and the wife lived on the second floor and had her own door. They both used the kitchen, which was on the first floor, and it was proven that they were never on the first floor at the same time for the separation period in question. That’s pretty extreme, right? I have heard of lawyers considering a couple separated simply because they slept in separate bedrooms. This thinking enabled the couple to have a divorce without the 90 day waiting period…but was that good advice? I do not think so and I think such a divorce could be found defective. That could lead to very serious issues when the parties remarry other parties, someone eventually dies and an ex-spouse decides there would be financial benefits if that ex could have the divorce ‘thrown out of court” to claim an inheritance!
However, here is an important change that happens when one simply files for divorce AND is residing elsewhere: You are then given “legally separated” status. This has the effect of your not being able to be accused of adulterous conduct with persons with whom you, uh, spend time with after separation. It also means, under typical conditions, that any assets you accumulate completely on your own after separation are yours and yours alone. Accordingly, even if your spouse will not cooperate in a simple, low-cost, uncontested, no-fault divorce, your spouse cannot prevent you from filing one and having the protections of “legally separated” status.
In my practice, to be separated for every day of the year for the year before a divorce is filed means every day of that year spent sleeping under completed separate roofs. That is the only way you can qualify properly for a faster divorce (one without the 90 day waiting period) and have a divorce that could not be set aside later by a judge for irregularities in your separation time. Better to have a rock solid divorce than one built upon a house of cards, don’t you think?