Question: I want to get a divorce.  However, my husband does not want to divorce.  In December 2016, I moved out of our home.  Even before I moved out, we were living in our home more like roommates than husband and wife.  It was my understanding when I moved out that I would have to wait 2 years from the date of our separation, i.e., the day I moved out of our home, to file for a divorce from my husband.  But a friend of mine recently told me that I don’t have to wait 2 years.  Is that true?

Answer:  On December 5, 2016, Pennsylvania law changed with regard to the separation required before filing for a divorce.  The Pennsylvania Divorce Code was amended to reduce the required separation period from 2 years to 1 year.  However, this only applies to separations that commence after December 5, 2016. 

According to your question, it appears that you physically separated from him some time in December of 2016.  If that date is after December 5, 2016, then you will be able to file for divorce a year after you moved out.  If the date of your separation is prior to December 5, 2016, then you will have to wait 2 years in order to file for a divorce in Bucks County.

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It is important to note however, that to meet the requirement of being separated, you do not necessarily have to be physically separated.  In fact, even if you were living under the same roof, you and your husband can still be separated under the law.  See definition of “separate and apart” provided below.

Essentially, you have to cease all aspect of a marital relationship.  You said in your question above that you live separate lives, and were essentially living like roommates prior to physically separating.  In your case, even if you moved out of your home before December 5, 2016, you may have been separated for a period of time before that even though you were living together in the home.  For instance, let’s assume the following scenario.  You moved out of your home on December 1, 2016, but you and your husband were living completely separate lives since June of 2016 when there was a declaration by one of you that you were separated.  You slept in different bedrooms.  You did not eat any meals with him.  You did not talk to him when you were both at home.  You didn’t know his schedule, and he didn’t know yours.  In such a case, rather than having to wait until December 1, 2018 to file for a divorce, you may be able to file for divorce in June of 2018.   It is important to note, however, that you have the burden of showing that the date of separation was earlier than the date you filed the divorce complaint.

Without talking to you about your living situation when you and your husband were living in the same home, we cannot properly determine if you were, in fact, separated.  It is best that you call a Doylestown divorce lawyer to discuss your situation, someone who can help you determine whether you and your husband were separated prior to physically moving out of the home.

Pennsylvania Divorce Code, Section 3103, Definitions

"Separate and apart."  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.

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