Separation During Cohabitation

In Pennsylvania, the date used to determine the value of the assets and liabilities subject to equitable distribution is the date of the parties’ separation.  All assets and liabilities accrued during the marriage and prior to this date are considered to be part of the marital estate.  For many couples, the decision to separate does not always coincide with a physical separation, such as obtaining separate residences.  Financial concerns, income sources, and childcare responsibilities often force many couples to reside together in the same residence long after their decision to separate.

The decision to separate also does not always result in the immediate filing of a Complaint in Divorce.  It is not uncommon for parties to separate months, if not years, prior to formally filing the Complaint.  The delay between the decision to separate and the manifestation of this decision in the form of separate residences or the filing of a Complaint can lead to discrepancies as to when the date of separation actually occurred.  Pennsylvania law defines the date of separation as the date when the parties began to live “separate and apart.”  Specifically, 23 Pa. C.S.A. §3101 defines “separate and apart” as the “complete cessation of any and all cohabitation, whether living in the same residence or not.”

Case law has established that there is a presumption in Pennsylvania that the date of separation is the same date as the filing of the Complaint in Divorce, regardless of whether the parties continue to share the same residence (See McCoy v. McCoy. 888 A.2d 906 (PA Super. 2005)).  The party seeking to rebut this presumption and establish a different separation date has the burden to show that the parties separated prior to this date.  That party must show that there was “an independent intent on the part of one of the parties to dissolve the marital union…” and that the intent was “clearly manifested and communicated to the other spouse.” Id. at 911.

In the McCoy case, Husband argued that the parties had “physically and emotionally” separated six (6) years prior to the date of the Complaint.  The Court contrarily found that Husband failed to show that there was a manifest or communicated intent to dissolve the marriage prior to the Complaint.  The Court found that prior to the date of the Complaint, the parties appeared to be a happily married couple to outsiders in the community.  They frequently took their children on vacations, to parks, games, church, banquets and family reunions as a couple.  They shared finances and filed a joint tax return.  Additionally, there was no evidence to indicate that either party was unfaithful prior to the Complaint.

In Frey v. Frey, the Court similarly found the date of separation to be the date of the filing of the Complaint.  821 A.2d 623 (PA Super. 2003)  In that case, the Complaint was filed on August 6, 1999.  Wife argued that the date of separation actually occurred after the Complaint was filed, as the parties had made reconciliation attempts subsequent to the filing.  Wife testified that after filing the Complaint, the parties saw a marriage counselor, had sexual intercourse, went to the movies and dinner as a family, went on vacations together, and attended their daughter’s  school activities and holidays together.  Wife therefore claimed that the parties did not separate until October 2001, when they first met with their attorneys.

Husband contrarily testified that although the parties continued to reside in the same residence, they slept in separate bedrooms.  Husband additionally testified that he only ate meals with Wife and his daughter occasionally, and that he only went out to dinner with Wife to discuss their problems and the distribution of their estate.   Husband claimed that he refused to move out of the residence because he had no other house, he had built the house, his daughter lived in the house, and his company was located next to the house.  Husband further testified that he and Wife did not sleep together while on vacation, and the sole purpose for the trips was to benefit their daughter.

The trial Court found in favor of Husband, and ruled that the date of separation was the date of the Complaint.  The appellate affirmed, finding that “Husband and Wife led separate lives, even though the parties generally slept under the same roof, and their activities together were knowingly performed solely for the benefit of their daughter.” Id. at 628.  The Court further held that “isolated attempts at reconciliation do not begin running anew the marital relationship.” Id.

Both McCoy and Frey illustrate the difficulties that can arise in establishing a date of separation that differs from the date of the Complaint if the parties continue to residence in the same home.  As assets and liabilities can fluctuate dramatically over time, the date of separation can be a crucial component to determining the size of the marital estate.  To avoid uncertainty in this date,  the formal act of filing the Complaint in Divorce remains the most definitive proof of the date of separation.


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The Family Law Focus blog provides highlights, updates and insights on complex family disputes including divorce, division of property, and alimony; child and spousal support; child custody; domestic violence; pre- and post-nuptial agreements; name changes; and adoption or termination of parental rights.
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The Editor

Attorney Jennifer A. Brandt, chair of Cozen O'Connor's Family Law practice, has represented a wide variety of clients in hundreds of family law cases in Pennsylvania and New Jersey. Jennifer is a regular legal commentator on national and local television outlets such as CNN, Fox New Network, HLN, MSNBC, Fox29, ABC News, NBC and CBS and frequently writes and contributes to articles in numerous publications, including the Huffington Post, Fox, The PhiIly Post,,, The Philadelphia Inquirer, The Philadelphia Business Journal, the National Law Journal, and Main Line Today magazine.
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