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.

See my recent post about some tips you can use before marriage to avoid divorce down the road!  Click Here for the Post.

Divorces are expensive.  Lawyers are unecessary.  All the information is online. . . .These are just a few of the justifications that couples use when deciding that they too can finalize their own divorce.  There are even online companies that ostensibly assist with a divorce for a small fee and no lawyers involved.  Sounds too good to be true?  It is.

If divorces were so simple, there would be no need for divorce lawyers or even family court judges.  The bottom line, however, is like any legal matter, from a criminal trial, to a slip and fall case, to a multimillion dollar commercial suit, a divorce needs the attention of an attorney.  Surprisingly, to many, a divorce does not need to cost a lot of money especially if the parties are in agreement as to the issues surrounding the divorce, such as division of property, support/alimony, custody of minor children and child support.  However, it is difficult to reach such agreement without the proper legal guidance.

The following are a few more reasons not to try a DIY divorce:

1) Division Of Property Is Final And Cannot Be Changed – Once parties agree on the division of their assets in a divorce, and a final settlement agreement is signed or an Order is issued by the Court , it often cannot be changed or revoked.  Thus, it is crucial that before agreeing to a division, parties know what constitutes marital and non-marital assets, the value of these items, and how they are typically divided in the jurisdiction in which they live in accordance with the facts of their case.  Lawyers spend years learning the ins and outs of the relevant laws.  It is prudent to be guided by a professional with this expertise.  Such advice can save a lot of future regret.

2) Each Jurisdiction Has A Different Set of Rules And Procedures – Frequently,  pro se litigants mistakenly believe that if they represent themselves in a divorce, the Courts will take pity on them or guide them through the process.  This could not be  further from the truth.  Judges expect those who choose to represent themselves to follow the same procedures and processes as attorneys who regularly appear before the Court.  And what makes this even more complicated, is that in some jurisdictions Court rules are not uniform across the state but can vary from county to county.  Thus, those who choose a do-it-yourself divorce can expect to spend many hours in the local law library brushing up on Court rules and procedures.

3) A DIY Divorce Will Not Save Money But Will Result In Lost Money – Cost is one of the primary reasons why parties choose a DIY divorce.  However, failing to have professional guidance can actually cost more in the end.  Parties are not educated on the law, and without a counselor and advocate to assist them, they are bound to neglect crucial issues.  Moreover, if one spouse is represented by counsel and one is not, the person without an attorney is at a severe disadvantage in the case.  Some parties believe that other professionals such as financial planners can substitute for an attorney in a divorce case.  This is a serious misconception because financial planners are trained in how to invest and manage money, not how to structure a divorce settlement to maximize their client’s interests.  Similarly, a mediator who assists parties in reaching a resolution in a divorce does not substitute for an attorney who will review a proposed settlement with only his or her client’s best interests in mind.

Divorces are not meant to be DIY.  Those who choose this route take a serious risk.  At a minimum, before undertaking a divorce one should meet with an attorney and be advised of the law and all of its permutations.  Only then can a truly informed decision be made on how to best proceed.

It is often said that the Criminal Division of the Court deals with “bad” people at their best behavior, while the Family Division deals with “good” people at their worst behavior.  Divorce litigation is undoubtedly stressful, and emotions often lead to the exchange of insults, demeaning comments, and disparaging remarks between the parties.  Access to social media makes it even easier to spread harmful statements about the other party in a matter of minutes.  These statements can be extremely embarrassing, and even detrimental to a party’s reputation in the community. 

As tensions rise during the litigation, it is not uncommon for the person on the receiving end of the disparaging statement to threaten to file a defamation lawsuit against the other party.  Defamation consists of two types of false statements: slander (false statements made orally) and libel (false statements made in writing).  To prove a defamation claim in Pennsylvania, the burden is on the Plaintiff (the party about whom the statement was made) to show:

            (1)  The defamatory character of the communication.

            (2)  Its publication by the defendant.

            (3)  Its application to the plaintiff.

            (4)  The understanding by the recipient of its defamatory meaning.

            (5)  The understanding by the recipient of it as intended to be applied to the plaintiff.

            (6)  Special harm resulting to the plaintiff from its publication.

            (7)  Abuse of a conditionally privileged occasion.

The numerous elements required under Pennsylvania law to establish a defamation claim is the first indication that these claims rarely come to fruition during a divorce.  Contrary to popular belief, it is not as simple as presenting the alleged defamatory statement to the Court and then proving that the statement was indeed false. 

Establishing the harm resulting to the victim of the statement is a particularly challenging element to prove.  The petitioner must convince the Court that the statement “tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third parties from associating or dealing with him.” Birl v. Philadelphia Elec. Co., 167 A.2d 472, 475 (Pa. 1960).  It is not sufficient if the victim of the statement feels “embarrassed or annoyed, he must have suffered the kind of harm which has grievously fractured his standing in the community of respectable society.” Tucker v. Phila. Daily News, 577 Pa. 598, 614 (2004).  Harm can be particularly difficult to show in a divorce litigation, where it is often the case that both parties are guilty of making derogatory statements about the other.

Even if a party successfully establishes a defamation claim, the person who made the statement then has the opportunity to present a defense to the claim.  Defamation defenses include proving that the statement was actually true, or that the statement was merely an opinion protected under by the doctrine of free speech.  While it is the Court that makes the preliminary determination as to whether or not a statement is capable of being defamatory, the claims and defenses are ultimately presented to a jury during a formal trial to determine whether or not the statement was in fact defamatory.The cost and fees associated with a jury trial can quickly exceed the costs and fees of the divorce litigation. 

While defamation claims may be threatened in the heat of the moment, formally filing a defamation claim is a serious decision that should be discussed thoroughly with the attorney handling your divorce.  Although the likelihood that a party will actually proceed with a defamation claim during a divorce is slim, this does not give a party the freedom to make disparaging remarks about the other party.  The misbehavior of the parties during the litigation often becomes another issue argued to the Court, particularly in custody disputes.  Divorce litigation is stressful enough. The dissemination of disparaging remarks will only complicate and prolong the matter, regardless of whether a civil lawsuit ever develops.