On June 4, 2014, the Centre County Court of Common Pleas decided a case regarding what it means for parties to live “separate and apart” for the purposes of Pennsylvania’s no-fault divorce statute.
The date of the separation is important because Pennsylvania’s no-fault divorce statute states that “[t]he court may grant a divorce where a complaint has been filed alleging that the marriage is irretrievably broken and an affidavit has been filed alleging that the parties have lived separate and apart for a period of at least two years and that the marriage is irretrievably broken.” 23 Pa.C.S.A. §3301(d)(1).
The Husband believed that the separation date was the day he filed his Complaint in Divorce.
President Judge Thomas Kistler’s opinion discussed a Pennsylvania Superior Court case that was particularly relevant: Frey v. Frey, 821 A.2d 623 (Pa. Super. 2003). In that case, the Superior Court found that the couple had been living separate and apart from the time the Complaint in Divorce was filed because the parties “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.” Frey, 821 A.2d at 628.
In the Centre County case, the Husband ceased sleeping in the master bedroom and separated the parties’ finances. The parties occasionally had meals together, attended sporting events together, and went on family vacations together, though most of these events involved the children. The judge determined that the two year period of separation began when Husband filed the Divorce Complaint because that was when the parties began living “separate and apart,” despite the Wife’s belief that the parties were attempting to reconcile.
The Court held “that in order to find the parties reconciled after the filing of the divorce complaint, the parties must have shown a mutual intention to resume the marital relationship. Isolated instances of sexual intercourse, sporadic outings together with the family, and trips together do not establish cohabitation prohibiting a divorce under Section 3301(d) of the Divorce Code.”
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