Legal Overview of Separation in PA


Pennsylvania does not require spouses to gain court approval for a separation which means they may contract privately on their own at any time for the separation of their estate.

For various reasons, spouses who are struggling in their marriage often decide to separate prior to, or instead of, divorce. For many, separation acts as either a cooling off period for couples having difficulty communicating or a slower adjustment toward what will ultimately become new living arrangements for the family.

In Pennsylvania, a separation agreement is a legally-binding civil contract between spouses in which they can resolve such matters as property division, debts, custody, spousal and child support at the time they separate from each other, or as of the time they agree that the "separation" takes/took place.

A separation agreement can include:

  • How much child support is to be paid (if applicable)
  • How often child support to be paid and how it will be paid
  • A parenting plan for parenting separately, including a set visitation schedule
  • How much alimony (if any) is to be paid
  • Who is responsible for the joint bills
  • Who will remain in the marital residence
  • If you are due any type of joint refund such as tax refund, determine how they will be split
  • If you have children, who will take the tax deduction for the children
  • Health insurance coverage
  • Loans and other debts

Legal Overview of Separation in PA

Main Line Family Law Center

How long do we need to be separated before we can be divorced in PA?

Effective December 5th, 2016, Section 3301(d) of the PA Divorce Code was amended in an effort to enable spouses to divorce after a 1-year wait period (instead of 2 years).

The intention behind the change is to reduce the conflict and financial burden often incurred with a 2-year rule.  Prior to December 2016, a spouse was able to delay a divorce filing for up to 2 years.

That means if you filed a unilateral (no-fault) divorce, citing irretrievable breakdown, spouses will follow the new one year mandatory waiting period requirement.

Any divorce filed before December 5th 2016, is still subject to the two-year wait period. 


Am I required to have a separation agreement by law?

While no law in PA requires a separating couple to execute a separation agreement, it is definitely a wise idea if there are debts, children, support claims or property involved and spouses want to settle these matters in writing via a legally binding document. Oral promises between spouses are unenforceable and have no value in a court of law.

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Can you collect spousal support during separation?

How is it calculated? If you and your spouse separate households, this may give rise to a claim for spousal support under the Pennsylvania Support Guidelines. The claim is initially filed with the county domestic relations office. A claimant need not file a divorce petition as a prerequisite to being eligible for spousal support. A higher-earning spouse is required to pay the lesser-earning spouse a monthly payment equal to 40 percent of the difference between their wages if there are no children, or 30 percent of the difference between their wages minus child support payments. Sometimes spousal support can be awarded in cases where parties continue to live together under the same roof, if it can be proven that the payor spouse deliberately refuses to pay household expenses.

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How long can you collect spousal support during a separation?

Theoretically, you could collect spousal support for an indefinite period, or for as long as you are eligible to collect under PA law. If a divorce petition is subsequently filed by either you or your spouse, a divorce agreement is signed and the court issues a final divorce decree, spousal support then terminates.

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Who prepares a separation agreement?

It is best to have an attorney who is well-versed with the law in your jurisdiction prepare it for you. The separation agreement is not valid in Pennsylvania unless both parties have signed and their signatures are notarized on the document. Never try to prepare such a complex and important document yourself - this is a job for a specialist.

The advice is never try to prepare such a complex and important document yourself - this is a job for a specialist.
However, if you and your spouse decide to go about it yourselves, you may turn to various online services such as Rocket Lawyer to get forms for a separation agreement or settlement agreement.

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Can we divide our property in a separation agreement?

Yes. A couple that is separating can agree on a division of property in their separation agreement, and that agreement will be legally binding on them. The type of property that is typical to be divided consists of real property (such as land and the buildings on it), tangible property (cars, jewelry and furniture for example) and intangible personal property (such as bank accounts, stocks and bonds, vested pensions and life insurance).

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Can I get child support if we separate?

Yes. Child support may be available to a spouse upon a separation of spouses to two separate households. A divorce action need not be officially filed in order for a spouse to make a child support claim. 

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Is my spouse required to sign a separation agreement?

No. "Agreement" means that both parties must sign voluntarily. You cannot compel your spouse to sign a separation agreement or to agree to the terms you wish to impose on him or her in the agreement. If you and your spouse cannot agree on all the terms of the agreement, it is recommended that you employ the services of a competent attorney-mediator who can help you reach a fair agreement on them.

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Do we need a separation agreement to stay on my spouse's health insurance?

No. A spouse generally has the right to remain on the other's health insurance, with or without a separation agreement, for all periods up until a divorce decree is issued in their case. There have been a few exceptions with certain union employers, however, who have taken the position that health insurance benefits will terminate for a spouse who is on the other spouse's policy when the couple physically separates to two households. Therefore, depending on the employer's health insurance plan, you should confirm the employer's policy in advance prior to proceeding with a separation agreement, out of an abundance of caution. 

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What is Date of Separation and how is date of separation determined? Why is it important?

In PA, the date of separation is determined by when you stopped acting like a married couple.  This could include, but not limited to things like sleeping in separate rooms or moving out, separating bank accounts, dating other people, etc.  There is no specific rule.

A separation agreement is one clear way to show date of separation, but not conclusive "proof" on its own that you have been living separate and apart from your spouse, and/or are officially separated in the eyes of the law. However, it may be strong enough evidence, coupled with other evidence, that the marriage ended as of the date of the agreement, such that the marital values for all assets and debts may be measured as of this date.

Of course, you and your spouse may specifically negotiate the legal date of separation in your agreement as you address the division of all of your marital assets and debts.  The existence of a separation agreement may not necessarily make a divorce in Pennsylvania any easier or more difficult to obtain.

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Will a separation agreement free me from paying debts for which I have signed along with my spouse?

No. A separation agreement is a contract between spouses. It cannot bind third parties (such as banks or finance companies) that have not signed it. If, however, one spouse promises to pay a bill or otherwise assumes a debt in the agreement, and then breaks that promise resulting in your having to pay, you can sue your spouse for breach of contract and restitution of the amount of money you had to pay the third party creditor on their behalf.

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Can I get my spouse for contempt of court if he/she breaks the promises in our separation agreement?

No. Contempt of court is the failure to obey a court order without legal justification. It is not contempt of court to violate a separation agreement unless the agreement has been approved by a judge and made a part of a court order. You may, however, sue your spouse for breach of contract n civil court if he or she violates the separation agreement.

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Can we provide for college education for our children in a separation agreement?

Although a Pennsylvania judge cannot order you to pay child support for your child in college to cover their tuition/living expenses, you may make provision for college expenses in a separation agreement and it will become a binding, enforceable contract which the court can require each of you to perform. Since college is less of a luxury and more of a necessity these days, it would be a good idea to consider whether you want to provide in writing for your child's/children's college education.

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Will a separation agreement stop my spouse from hassling me?

While separation agreements usually have a nonharrassment clause in them, you should understand that no piece of paper - be it agreement or court order - is going to stop a person from doing something he or she wants to do. If the problem is one of physical violence, a protection from abuse order from the court would be better than a separation agreement, and could be used to punish the wrongdoer if he or she violated the order. In a separation agreement, a lawsuit for breach of contract is one possible remedy for breaking the promise of not hassling each other.

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For child support and custody, is the court bound by what we put in the separation agreement about our children?

No. The terms you include for child support, custody can always be modified by the court in the best interests of the children. In the absence of proof to the contrary, however, there is a presumption that the terms concerning the children in your agreement are fair, reasonable and necessary for the best interest and welfare of the children.

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Can the court modify the terms we include in a separation agreement concerning ourselves?

Unlike the terms concerning children, which are always modifiable by the court, the terms that pertain to adults cannot be modified by the court except in very limited circumstances. For example, if the separation agreement has been incorporated into a court decree, but not merged therein, then the court has the power in Pennsylvania to modify alimony terms based on a substantial change of circumstances, as long as the contract specifically states that the alimony, is modifiable.

If the terms involve property division and the agreement has been incorporated, the court can only modify it if it is executory in nature (i.e., it has not yet been completed, such as the transfer next year of a car title to a spouse), as opposed to those items which are already executed by the parties (such as the deed to the house that was signed over to a spouse at the same time as the separation agreement was signed).

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Can a court ever invalidate or overturn a separation agreement?

The court can invalidate or overturn a separation agreement if it was signed due to fraud, coercion, ignorance or lack of mental capacity. In most cases, however, this is difficult to prove.

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Can our separation agreement settle who claims the tax exemption for our children?

Yes. The 1984 Tax Reform Act allows spouses to agree as to who will claim the children as exemptions for income tax purposes, assuming they are filing "Married Filing Separate." Without a written agreement, the parent who has physical custody of the child for more than half the year will get the dependency exemption.

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If I move out, will I still have a claim to the house in a divorce? 

If you move out temporarily, you still have a claim to the house because it was your primary residence. If you bought the house, you also have a claim. However, this can change if you're separated for a long time. If you establish yourself in a new residence for more than two years, the court could grant the current occupant of the house a greater portion of the marital property's worth.

Who pays the bills while we're separated?

If you choose to move out, you may be required to pay spousal support depending on who has a higher net income. However, before coming to an agreement on divorce, you will still be required to pay off your portion of a mortgage loan or rent. This keeps you financially married to your spouse even though you may be emotionally separated.

That's why it's best to collaborate before moving out. Determine a plan that is financially fair to you both. If you choose to mediate your divorce, you can create a temporary agreement about finances. If you're unsure about whether the separation will lead to divorce, you can have a separation agreement that outlines responsibilities.

Will it be considered abandonment if I move out? 

The court will only consider the issue of abandonment if your spouse makes a claim for it, though it typically does not gain much traction unless the separation is extremely prolonged and communication almost nonexistent. If this becomes an issue, it can affect the physical custody rights you have toward your children in a divorce. This is why discussing moving out with your spouse before you make the move is important. You can make sure abandonment will not be an issue before you go to court.

Is there anything I should do while separated to help my divorce?

If you are going through litigation, a contested divorce can last many months if not years. This is one reason you might want to consider mediation if moving out is an issue. Mediation can be as fast as six months and may eliminate the need for you to make a total move out. Keeping the status quo will also minimize the legal complications around your divorce. If you still choose to move, look for a place where your children can stay as well. You want to keep communication during a separation so you stay a primary parent - not the parent they visit.

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