What is Legal Separation?
Ask an Attorney: Matrimonial & Family Law
Question: What is legal separation? Am I automatically divorced after we have separated?
Answer: Lawyers hear these questions all the time. Pennsylvania shifted to no-fault divorce many years ago and now permits parties to divorce by claiming only that they have “irreconcilable differences”, or that the marriage is irretrievably broken.
If both parties consent, the necessary paperwork can be filed with the court as early as ninety days from the date the divorce complaint was file and served (note that service is essential). A divorce decree is issued shortly thereafter. No muss, no fuss. You’re done.
Sometimes, however, one spouse decides not to cooperate. In those cases, unless you have grounds to pursue a fault divorce, you will need to wait until you and your spouse have been separated for two years. Separation means, essentially, that you are no longer living together as husband and wife, and are not presenting yourselves to the outside world as husband and wife. And yes, you can be legally separated while living together under the same roof, although it can be harder to prove. Physically separating is the easiest way, and now, under recent amendments to the divorce code, the filing date of a complaint in divorce creates a presumption of separation.
Don’t be fooled, though. There is nothing magical about that two-year number. You are not automatically divorce once the time period is up. Instead, it simply means that the other spouse loses the ability to block the divorce from moving forward. There is still work to be done when the timer goes off. And if you find yourself in that situation, it’s probably the right time, if you don’t have one already, to find yourself an attorney.
Allen I. Tullar, Chair of the Matrimonial and Family Law Group, regularly counsels individuals in divorce, custody and child support matters.