Separation Laws in Pennsylvania

Many couples separate before they're ready to get divorced—or even if they never plan to divorce. If you live in Pennsylvania, you should understand the different types of separation, as well as your legal rights and responsibilities when you're separated.

Does Pennsylvania Allow Legal Separations?

No, Pennsylvania does not allow couples to get a legal separation. Legal separation is a formal legal process that deals with many of the same issues as in a divorce—such as property division, alimony, child custody, and child support—except that the spouses remain legally married.

Legal Issues for Separated Couples

Of course, you and your spouse may decide to separate even if you can't get a legal separation. And when you do, the separation will have certain legal consequences.

How Separation Affects Property Rights in Pennsylvania

Under Pennsylvania law, any property that one or both spouses acquire during their marriage is generally considered marital property that will need to be divided between spouses when they divorce. There are a few exceptions, however, including:

• any property the spouses have agreed will remain separate property in a valid agreement, and
• property either spouse acquires after the couple's final separation, which will be that spouse's separate property.

The law doesn't specifically define a "final separation," but Pennsylvania courts have held that it's related to living separate and apart—which means completely stopping all cohabitation, whether or not the spouses are living in the same home. Cohabitation doesn't just mean sex. Instead, it refers to all the rights and duties that spouses have toward each other. (23 Pa. Cons. Stat. §§ 3103, 3501 (2024); Teodorski v. Teodorski, 857 A.2d 194 (Pa. Super. Ct. 2004).)

When Pennsylvania Requires Separation Before Divorce

In Pennsylvania, couples don't need to be separated for any period before they file for a no-fault divorce based on mutual consent—meaning they agree their marriage is "irretrievably broken." But if one spouse doesn't want a divorce, the only other way the other spouse can get a no-fault divorce in Pennsylvania is to show that the couple has been living separate and apart for a year, and that the marriage is broken beyond repair.

Legal Obligations of Separated Spouses

Under Pennsylvania law, all married couples have a legal obligation to support each other, "according to their respective abilities." Also, all parents have a legal obligation to support their minor children. (23 Pa. Cons. Stat. § 4321 (2024).)

A couple's separation won't change or eliminate either of those legal duties.

What a Separation Agreement Should Cover

Given the practical and legal consequences of living separate and apart, separated couples will face some of the same issues that come up in divorce, including:

• how they'll deal with the family home and other property
• whether one spouse will provide financial support to the other, and
• if they have minor children, how they'll handle their parenting and support.

One way to deal with these issues is to negotiate a separation agreement with your spouse.

The Family Home and Other Property

If you're like most couples who are separating, you won't want to live under the same roof any longer. Even if one of you has been staying elsewhere during a trial separation, you should think about the consequences of moving out of the family home when you don't expect to get back together again. If you own a home together, the agreement will need to address many of the same issues related to the family home when couples divorce, including:

• whether one spouse will stay in the home
• whether you and your spouse will continue to co-own the home, and
• if you agree on co-ownership, which of you will pay for the mortgage, insurance, repairs, and other costs.

Whether you're homeowners or renters, your agreement should also address your other marital property, like cars, furniture, and electronics.

You may agree to divide all of your property when you separate. Or you may instead agree on which spouse gets to use certain items during the separation, without that affecting ownership and the property division in a future divorce. Either way, make clear what you're agreeing to. That way, if there's a legal dispute about it in the future (for instance, if you have a brief reconciliation before separating again and divorcing), a judge will rely on the terms in your agreement. (Bechdel v. Bechdel, 9 Pa. D. & C.4th 663 (1991).)

Spousal Support During Separation

If one of you earns less than the other (or has been out of the workforce while caring for the home and children), you may agree that the higher-earning spouse will pay financial support to the lower-earning spouse during the separation and, if so how much the payments will be and how long they'll last. Your agreement should also address how either spouse may seek to change or end those support payments.

Child Custody and Support

If you have minor children, your separation agreement should include a parenting plan that addresses all of the issues related to your custody arrangements:

• where the kids will live most of the time
• a schedule for when each parent will spend time with the children
• how you'll handle transportation and pick-ups for parenting time, and
• how you'll handle making decisions about the children, including their health care and education.

Your agreement should also cover child support: which parent will make those support payments and how much they'll be. Be aware that the guidelines for calculating child support in Pennsylvania apply regardless of the parents' marital status, so you'll need to either agree to the standard guideline amount (which you can calculate using the Pennsylvania Child Support Estimator) or explain why that amount would be inappropriate. (Pa. Rules Civ. Proc., rules 1910.16-1–1910.16-7 (2024).)

If you aren't able to reach an agreement about child support and custody, either parent may request a court order on those issues.

Making a Valid Separation Agreement

Once you've agreed on the issues related to your separation, put the details in writing. If you want to make sure that you haven't left anything important out of your agreement—or that you've inadvertently signed away important legal rights—it's always a good idea to consult with a lawyer. An experienced family law attorney can evaluate your situation and write a draft of a separation agreement that will protect your rights (and those of your children, if you have them). Then your spouse (and your spouse's lawyer) can review the draft and suggest any changes. The goal is a friendly negotiation so that you end up with an agreement you both can live with.

Even if you think you and your spouse can negotiate and write a fair agreement on your own, you should at least have a lawyer review the document before you sign it.

The final, signed agreement will be a legally binding contract. That means if one spouse doesn't follow all of the terms in the separation agreement, the other spouse may ask the court to enforce it.