Early today I fielded a call from a friend who casually asked about the definition of legal separation. I provided the textbook answer including the presumption while noting that this was one concept where ambiguity was on the rise. This afternoon’s Superior Court ruling in Pennington v. Pennington perfectly illustrated the point.

Everyone agrees that Lisa and Aaron Pennington were married in June 2008. Husband filed for divorce in Butler County in March 2016. In olden times separation was frequently defined as the date one spouse’s possessions were thrown onto the front law. The movie Tin Men from 1987 did a great job of capturing the moment.

Today, it has become complicated. While Aaron Pennington filed in 2016 it seems no one moved out. In fact, wife asserts that nothing changed. She argues that she continued to do the laundry, the shopping, and the cooking for Husband. She further notes that Husband requested a “hold” on the equitable distribution trial before the special master in 2019 so the parties tried marriage counseling.  According to Wife, Husband never took affirmative steps to move forward with the divorce until July 2021 (five years after the presumed date of separation), when Husband filed a motion to re-appoint the master.

This occurs a lot. At times, there is no physical separation because the parties cannot afford two residences. But when “cohabitation” comes with laundry, shopping and food service, one does wonder why anyone gets divorced. The other facts that tend to preserve the “ties that bind” include an ongoing sexual relationship (lawyers are told it’s need and not desire based); continued attendance at family and public gatherings (“I needed to eat Easter dinner somewhere”) and common vacations (“We booked it a year ago”). During breaks in hearings on these subjects, judges often tease counsel about having to listen to all of this. “Counsel, couldn’t your clients find someone new to have sex or dinner with during the five years of separation? Really?”

In Pennington, the court latched onto an amendment to the Divorce Code that has been around since 2004. In that year 23 Pa.C.S. 3203 was amended creating a presumption of separation on the date a divorce action was served. In this case, that was in April 2016. The presumption is rebuttable but in this case, the court wasn’t having it despite wife’s testimony that she and husband continued with the rights and duties of a married couple despite the pending case.

It seems that Mrs. P put forth a pretty good defense to the presumption if she did all that she described after being served with a divorce complaint. But courts are chary to re-litigate these matters, especially when it was easily within wife’s power to say: “No dinner or laundry until your lawyer withdraws your divorce filing.” The Superior Court also notes the holding in Frey v. Frey, that a continuing sexual relationship, by itself, does not signal resumption of the marriage. 821 A. 2d 623 (Pa.S. 2003).  Courts are looking for “separate lives” while acknowledging that circumstances may make it unrealistic to reside under separate roofs. Meanwhile, in this case it seems that both the trial and Superior Courts were sticking with the presumption rather than enduring testimony about who took the trash out or whether the tax returns were joint or married/separate.

Pennington v. Pennington  356 & 406 WDA 2023 (2/23/2024)