IN HOUSE SEPARATION – A LEGAL DOMESTIC PURGATORY

Last Thanksgiving, my husband and I decided to separate. We needed to save money so we stayed in the same house, and he slept in the guest room while I remained in the bedroom. Over the holidays, we were intimate on 2 occasions, both of which occurred after nights of heavy drinking at different holiday parties. We continued to stay in separate bedrooms and we both decided that it should never happen again. My friend told me we might not really be separated because of those 2 “mistakes.” Also, she says we need to be separated for 2 years before we can get divorced, but my husband says its 1 year. I am very confused and worried. I have decided not to hire a lawyer because I don’t think I can afford the expense. Please Help!

Our Response:

December 5, 2016 is a date that will live on in infamy, at least in the Commonwealth of Pennsylvania. That is because it is an important date for Pennsylvanians contemplating divorce. Under Pennsylvania’s new divorce law, parties that separated on or after December 5, 2016 can be divorced after a 1-year separation period. The old law requires a 2-year separation period before a divorce can be granted, and it still applies to parties who began their separation period before December 5, 2016. Your situation would fall under the old law, since you separated in November of 2016.
In Pennsylvania, separation in the context of divorce means that the parties are living “separate and apart.” That does not mean, however, that parties cannot be separated while living under the same roof. The law requires that cohabitation must end for the separation period to begin. That is, the parties must stop assuming the typical rights and duties of spouses, whether social, financial, or sexual.

In an in-house separation, the parties sleep in separate areas of the house but share the same common areas. Here, the law requires “separate lives, not separate roofs.” Pennsylvania courts will look at the surrounding circumstances in context of the parties’ lives to determine whether the parties were truly separated. Examples include whether the parties continued to attend social functions together as husband and wife, whether they continued to maintain joint finances, whether they continued to vacation together, and of course, whether they continued to be intimate with one another.

We would need more information to give you a definite answer, but if you are telling me that you were intimate with your husband on two isolated occasions while you were both inebriated, and that you were otherwise living separate lives, then the sexual contact between you should not interrupt your separation period for purposes of divorce. We would also like to advise you to at least talk with a lawyer about your situation, because there are a lot of complications that may arise, and what you do now will affect you for the rest of your life. I would be happy to speak with you more about your case. At WE CARE LEGAL SERVICES 1-855 LAW-FAMILY, we are available 24/7 and our consultations are always free and we strive to make our services affordable

Also. Please remember that, a spouse can always deny an in-home separation in order to prolong a marriage and avoid divorce. In that case it becomes your word versus theirs and there may have to be a hearing to determine the separation date. Here are some hints to make your in-house separation absolutely count toward count toward the one-year separation required by law:

1. Document the fact that you are sleeping in separate bedroom by sending your spouse a verifiable text email, or letter confirming that the in-house separation began on a given date.

2. Move your belongings (or your spouse’s belongings) out of the marital bedroom to another part of the home and take time-stamped pictures and/or videos of the moving and final separation of belongings.

3. Take time-stamped pictures and/or videos of the separate sleeping and/or living arrangements.

4. Bring witnesses into the home to see and verify the separation of belongings and separate sleeping arrangements as of a specific date.

5. If possible, separate all bank accounts to demonstrate independent living.

6. Avoid going anywhere publicly as a “couple,” including social outings, family gatherings, weddings, funerals and/or vacations.

7. Don’t open any credit cards, accounts and/or loans in joint names.

8. Don’t make any purchases in joint names.

9. Don’t file joint tax returns unless your spouse affirms in writing that you are separated and the joint tax filing is only for economic purposes.

10. Avoid all sexual contact with your spouse during separation. This is surprisingly difficult for some clients to follow. Specifically, do not allow your spouse to take compromising media of you during the in-home separation.

11. A spouse doesn’t have to file for divorce to establish an in-home
separation, but it can help if you do so to establish your clear present intention of separating.

Jan Grossman, Esq.

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