Karen Ann Ulmer, P.C.

“We Are On Your Side”

Navigation Practice Areas

Watch our Video

Two-Year Separation - Divorce

Most parties pursuing divorce will choose to proceed with no-fault grounds for divorce. A no-fault divorce simply means there has been an irretrievable breakdown of the marriage. There are two different ways to establish an irretrievable breakdown of the marriage under the Divorce Code. First, both parties may consent to the divorce after 90 days from when the complaint was filed and served. This is referred to as a 90-day mutual consent divorce. Alternatively, if one party won't consent, the other party can move forward after the parties have been "separated" for two years. This is referred to as a 2-year separation divorce.

Separation does not mean the parties have to live separately. Many parties still reside in the same home but are considered to be "separate" based on the definition provided by the Divorce Code. Section 3103 of the Divorce Code defines "Separate and apart" as follows: "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."

Accordingly, the date the divorce complaint is filed will generally be accepted as the date of separation regardless of whether the parties continue to live together or not. However, the date of separation can be an even earlier date. For example, the date one party does move out of the marital home is usually a clear indication the marriage is over, and hence, an acceptable date of separation. Alternatively, even if the parties continue to reside together, a date of separation can be established when one party makes it clear to the other party that the marriage is over by stating so clearly or even reducing it to writing. The party alleging 2-year separation will have to submit an affidavit certifying the date of separation. The other party has an opportunity to object and a hearing may be held if necessary to determine the appropriate date of separation. Accordingly, be sure that the other party is keenly aware of your intended separation, especially if you will continue to reside together and/or hold off on filing for divorce.

22 Comments

I have been separated for more than 2 years. My wife has since moved to Florida and will not file divorce and she has refused to cooperate if I pay for and file a no-fault divorce. I have already paid for a no-fault divorce that she refused to sign and the law firm I hired dropped the case. At this point, I have no current address for her and she refuses to give one. She has been mentally and emotionally abusive to me for years and this is a deliberate act by her to prevent me from re-marrying. I feel helpless and hopeless. Can someone please tell me how to divorce this horrible woman?

She does not need to cooperate or sign when you have already been separated for two years however you must still give her notice by serving her. If you cannot find an address to serve her you can petition the court to give notice by publication. Be warned this option is fairly expensive. It may be cheaper to hire a private investigator to track down her whereabouts.

I have been separated for over 2 yrs and filed for a no fault divorce. He filed for alimony and distribution of assetts. When I give my lawyer the bank statements etc. does it go from date of separation and back 3 yrs or is he entitled to what I've earned since he's been gone? Do I have to turn over this info or can I petition the court for divorce again? I only ask because he was a heroin addict and abusive during our marriage and I really don't want to face him in any setting especially if a judge is going to add insult to injury by making me pay him.

The relevant date for any assets that are up for distribution is the date of separation. After separation, anything acquired individually is separate property so you would not have to give him a portion of what you've acquired since separating. You do have to turn over the information requested or he could file a motion with the court compelling you to do so and eventually seek sanctions from the court for your non-compliance.

Divorce complaint was filed in 2009 by my ex. I signed all the documents and returned everything to her but received no notice that divorce was finalized. I contacted the PA county court and they say that the divorce was denied because of some type of service issue. I live in Canada but she has lived in PA for years which is where the divorce was filed. I was already subpeonad to court for alimony years ago which was denied by the judge. I don't understand why the divorce was not granted. It has been 4 years now so I am assuming we will have to start this entire process over again. We seperated 12 years ago and were only married 9 months but she filed for the divorce 4 years ago. I did what I was required to do.

A divorce complaint once filed must be served on the opposing party within 30 days of the filing date with proof of service subsequently provided to the court. Acceptable methods of service include acceptance of service, personal service or certified mail, return receipt requested signed by the opposing party. It's possible your ex didn't use one of the acceptable methods of service or didn't file proof with the court. It may be possible to rectify the service issue by signing an acceptance of service and back-dating to when you received the complaint assuming you did receive it in a timely fashion. If that's not an option, the complaint would need to be reinstated and re-served as required with the proof of service supplied to the court.

I've been seperated sine 8/11 and filed for divorce on 10/11. Since then I have been working with my ex to settle on a agreement. We split our bank acounts and any debt has been taken care of and I payed her for the equity in the home and she has signed a quit claim deed. We are down to settling on personal property and all she wants is money but I have no more money to go around. What happens after this goes two years and we havent come to an agreement on the personal property what are my next steps?

After two years you can submit an affidavit of separation with the court. You would need to serve a copy of that affidavit on your wife along with a counteraffidavit allowing her to object and 20 days notice. If no objection is received within the 20 days you can file a praecipe to transmit for a grounds order. A grounds order establishes you have met the requirements for a divorce based on the Divorce Code. Once grounds are established, you can file for a hearing on the property issues at which time the court would make a final determination to resolve any outstanding issues and then grant the divorce decree.

I have been seperated 3 years. I have Primary Physical custody of our 8 yr old son. Our marital home was lost and is now the banks. There is no money to distribute. However my lawyer will not proceed because my balance is $13K, and he is concerned my ex will fight this as well. There is nothing left to fight over but she insists on going before a judge because she refuses to walk away with nothing. Again there is NOTHING LEFT. If I file this complaint and she contests it, will it go infront of a Master for a hearing and cost me tons more in legal fees? Help Im getting desperate.

If your ex refuses to cooperate and insists on going after marital assets, even if non-existent, you would likely have to go to a Master's hearing wherein it would be established that there is nothing to divide. The Master would then recommend a divorce decree be granted. If your ex is still in denial, she could file exceptions to the Master's Report and seek a hearing before the Judge. Your best recourse would likely be to request counsel fees from your ex based on her frivolous delay of the divorce and acting in bad faith.

I have been separated from my wife for almost 3 years and she moved to Chicago 2 years ago. I filed for divorce in February of this year. I was told I would have to send her a certified affidavit and I did. She called and said she has contested the divorce for child support. Is this possible since we've been separated for so long. How can she contest it? I've never been on child support and the only reason she is doing this is to prevent me from re-marrying. I'm disgusted and don't know what to do.

She can request child support at any time if the children are still under 18 and attendingn school. However, the fact that child support may be due has nothing to do with the divorce going through and is not a reason to contest the divorce. Did she file a written objection to the affidavit as required? If she failed to file a written objection within 20 days of having received your affidavit as instructed, you would still be permitted to request a final divorce decree from the court. You can request a hearing on the date of separation in order to finalize the divorce if your wife did object in time.

I have been separated for 8 years living in the same house. I just got back in the work force full time 2 1/2 years ago. I want to get my own place now. Neither one of us has filed yet. We have three children under age 16. If I move out should I have a notarized affidavit listing the days I will have the children and what I will be taking from the home.

It is helpful to have a written agreement as to what you are taking and a schedule for custody. It may be difficult to enforce the agreement unless you make sure the agreement also becomes a court order. This would entail opening a custody/divorce case with the court and then submitting the original agreement with a request that it be made an order of court. Once it is a court order you can utilize the powers of the court for enforcement via a contempt petition.

I have been w/ a man for 3 years now. He and his wife had been separated since, he lives with me. Is he considered divorced at this time. He does pay child support and went through the courts. They have them as separated

Thanks

He is not considered divorced until an official divorce decree is granted by the courts. This would only occur after one of the parties files a divorce complaint and meets all statutory requirements for finalization of a divorce.

I live in Chicago, my wife has filed a petition for divorce in PA on two years separation ground papers I have received do not show any kind of claim except irretrievable breakdown. It was all without my consent nor I signed any documents . Now I have received an affidavit of consent and waiver of notice of intention to request entry of a divorce decree under3301 of divorce code. I am not going to sign any of these doc. What are the consequences for me? Can she now claim for any thing to pressurize me to sign affidavit of consent etc...........Thanks

,

If there are no issues regarding support or property, your wife can seek to finalize a divorce on the basis of two year separation without your consent. She would only have to provide proof that you were served with all the paperwork and given the requisite notice (20 days). She has no choice but to proceed on the basis of two year separation if you refuse to sign the consent. If there are issues relating to support or property that she raised as part of the divorce, those would need to be resolved prior to the court entering a decree. If she didn't raise anything and you would like those issues addressed, you would need to file and raise them prior to a divorce being finalized or you lose your right to do so.

My ex and I have been separated for 2 years (as of July 20, 2013). I filed for divorce on 8/5/13. I sent my ex his paperwork via restricted certified mail. The green receipt came back to me with his signature and date. He called me and told me he isn't going to sign the papers and give them back to me because "he doesn't feel like it." Can I still proceed with my divorce without his paperwork?

The short answer is yes. Since you've been separated for two years you can move the divorce forward without his consent. You'll need to sign and file a 3301(d) affidavit regarding the date of separation and have that served on him as well if you haven't done so already. If there are no assets to divide or other issues relating to the divorce, you can file to finalize by completing a Praecipe to Transmit after you've served him with the 3301(d) affidavit, counter-affidavit and Notice of Intent to Request the Divorce Decree.

I filed for Divorced 2 years ago and remained in the house until 3 months ago...I just served her the papers 1 Month ago...She is not going to sign them...So since I filed 2 years ago do I fall under the Law that it's over now? What is the next steps?

If you successfully served her with the divorce at the time you filed, you wouldn't need her signature to finalize the divorce. You will need to file an affidavit with the court indicating there has been a two year separation. You would then need to serve that affidavit on Wife with a counter-affidavit for her to use if she desired to object to the date of separation or to the assertion the marriage is irretrievably broken. You must wait 20 days from when you serve the affidavit of Wife before asking for the divorce decree to give her sufficient time to act on her end if she chooses to.

Leave a comment
Comment Information
Avvo Rating 8.9 Excellent Featured Attorney Family
Avvo Visa Mastercard American Express
Overall Client Rating in Family Law 4.8 out of 5.0 2014 Top 100 Lawyer - ASLA

Privacy Policy | Business Development Solutions by FindLaw, a Thomson Reuters business.