Pennsylvania Family Law : Pennsylvania Divorce Lawyer & Attorney : PA Family Law Blog : Fox Rothschild Law Firm : Family Law Serving Philadelphia, Pittsburgh, Bucks County, Montgomery County, Chester County

As practitioners we advise clients that if they cohabit after they have been divorced they will most likely not receive alimony. 23 Pa.C.S.A. § 3706 provides that, “no Petitioner is entitled to receive an award of alimony where the Petitioner, subsequent to the divorce pursuant to which alimony is being sought, has entered into cohabitation with a person of the opposite sex who is not a member of the family of the Petitioner within the degrees of consanguinity.”  It is important to note however that in cases resolved by property settlement agreements, this section applies only if the agreement contains language that cohabitation terminates the alimony obligation. Van Kirk vs. Van Kirk, 336 Pa.Super. 502, 485 A.2d 1194 (1984). 

What determines whether parties are cohabitating? The Divorce Code fails to define cohabitation. However, the courts have generally defined cohabitation as “two persons of the opposite sex resid[ing] together in manner of husband and wife, mutually assuming those rights and duties usually attendant upon the marriage relationship. Cohabitation may be shown by evidence of financial, social and sexual interdependence, by a sharing of the same residence, and by other means.” Miller v. Miller, 508 A.2d 550, (1986). This case appears to follow some earlier trial court precedent such as Soby v. Soby, where the Montgomery County Court of Common Please said that alimony would not terminate because of the amount time a person spends with another unrelated adult, but needed to be supplemented by a showing of support in a financial sense. 113 Mont. Co. L. R. 406 (1983)

When an issue of cohabitation arises, it becomes a matter of evidence. How much evidence can be obtained to show that the alleged “cohabitors” are in fact linked financially, socially, and sexually. Interestingly, the cases do not clearly articulate how much evidence is enough to prove cohabitation. So, when advising your client regarding cohabitation, it is important to make sure that they understand the “haziness” of the definition of cohabitation, and the difficulty with proving (or disproving) cohabitation. 

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Ask any divorce lawyer in Pennsylvania to specify the two most common questions he or she might encounter in an initial interview and the answer will inevitably include one or both of the questions recited in the title.

The second question is easy to answer. It is pretty safe to say that it is impossible to be divorced in the first ninety days after a divorce is filed.  The law is clear. For the first ninety days after a divorce complaint is served (and service must come after the complaint is filed) neither party is eligible to consent to divorce. And for a divorce to move forward it is pretty much necessary for both sides to file affidavits of consent.  Complicating matters is the common fact that many people who file for divorce will for strategic reasons refuse to consent to the same divorce.  Absent the consent of both parties a divorce can move forward based upon either fault based grounds (adultery, cruelty, an ambiguous term called indignities and some other obscure grounds) or a legal separation of two of more years. Only after divorce grounds are established can a divorce be granted.  And in almost all situations the divorce will not come until claims for distribution of property and alimony are resolved by the parties or decided finally by a court. So there is no divorce after 90 days unless the parties are cooperating and there is no divorce even after a two year separation unless the economic issues are resolved. It makes the process slow and expensive but the lawmakers in the General Assembly have passed laws that favor delay in the hope that it may prompt reconciliation.

We have noted that a divorce can proceed even without consent where there has been a separation of two or more years. The question of when a couple is separated for purposes of the Divorce Code is one of the most difficult to answer.  In 2005 the legislature helped to clarify the separation by declaring that there was a rebuttable presumption that a couple was separated when a divorce action was filed. But the presumption is rebuttable where one party can show that there has not been a complete cessation of cohabitation.

An end to cohabitation does not require a separate household. The law as it has evolved in the courts that cohabitation ends when the parties show a clear intention to no longer be together.

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As practitioners, clients often ask us about filing for a "Legal Separation". While Pennsylvania does recognize the term, the "factual" date of separation may be important in valuing assets (non-marital assets are generally valued from date of marriage to date of separation) and for setting the date for when the grounds for a divorce may exist . So, what determines the "date of separation"?

The date of separation is the date upon which it is determined that the parties are living “separate and apart”.  23 Pa.C.S.A. § 3103 defines "separate and apart" as "the cessation of cohabitation, whether living in the same residence or not.  In the event a complaint in divorce is filed and served, it shall be presumed that the parties commenced to live separate and apart not later than the date that the complaint was served".  

Cohabitation is defined as the "mutual assumption of those rights and duties attendant to the right of husband and wife".  Mackey v. Mackey, 545 A.2d. 362 (Pa. Super. 1988). 

When the parties are physically separate, they generally will agree on the date of  separation. However, when the parties reside in the same residence and no divorce complaint has been filed, the court can still determine that the parties live separate and apart. To do so, the courts, on a case-by-case basis, look at some of the following to determine whether parties have been living "separate and apart":

The "spouses' intent to dissolve the marital relationship must be clearly manifested and communicated to the other spouse, before the spouses can begin to live 'separate and apart'".  Sinha v. Sinha, 526 A.2d 765 (Pa. 1987)

Some factors which have been considered in determining the parties' intent have been:

1. How much time the parties spent at the marital residence.
2. Whether the parties slept in the same room.
3. Whether the parties ate meals together.
4. Whether or not the parties took vacations and outings together and whether or not those outings were for the child's benefit only.
5. Whether or not the parties gave the appearance that everything was fine for their child's sake.
6. Whether the parties lived separate lives. 
7. Whether the parties had sexual relations.

Frey v Frey, 821 A.2d 623 (Pa. Super. 2003).  See also Mackey v. Mackey, 545 A.2d. 362 (Pa. Super. 1988).

It is important to advise your clients regarding the date of separation if there are non-marital assets or if the other party will not consent to the divorce.  If you want to make the date of separation clear, the best way to do so is by filing the divorce complaint.

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