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Reconciliation Pending Divorce

Potential reconciliation between parties going through a divorce can have an impact on the course of the divorce. Specifically, if a party is pursuing a divorce on the grounds of two-year separation, a reconciliation may result in a new date of separation date and hence a new two-year waiting period. Case law has distinguished what actions/behavior will be considered a successful reconciliation, hence tolling a new period of separation, versus those actions/behavior that will not change the initial separation date. Separation for the purposes of divorce is defined as the "complete cessation of any and all cohabitation." Cohabitation, though not specifically defined in the divorce code, is generally understood to be living and dwelling together as husband and wife with the mutual assumption of all marital rights, duties and obligations. It requires more than just remaining in the same house overnight or for the weekend or taking a week long trip together. This is still true even if the parties engage in sexual relations. Instances of sexual relations during a separation will not alone establish a reconciliation. The public policy of the Commonwealth is to encourage a reconciliation where possible and so it is reluctant to punish parties for unsuccessful reconciliations by causing the period of separation to have to start again because of a failed attempt.

In Thomas v. Thomas, 335 Pa. Super. 41 (1984), the Court expressed its agreement with neighboring states who treat the issue of reconciliation similarly. For example, in a New Jersey case the court held that a four week trial reconciliation period did not defeat the previously established separation date (Brittner v. Brittner, 124 N.J. Super. 259 (1973)). In Delaware, the law provides that any reconciliation attempts that occur prior to the 30 days immediately preceding the hearing on divorce will not affect the initial date of separation. Accordingly, attempts at reconciliation may not necessarily change the date of separation for the purposes of the divorce. The court would examine the facts of the reconciliation to determine if it was a full-blown resumption of the marital relationship which would potentially result in a different date of separation or alternatively, treat the failed attempt as further evidence that the marriage is irretrievably broken and the divorce should proceed on the initial separation date. In Britton v. Britton, 400 Pa. Super. 43 (1990) a reconciliation did defeat the period of separation when the reconciliation lasted three months, the parties resumed living together, ceased to maintain separate residences, jointly purchased a townhome, shared the same bedroom, engaged in sexual relations, shared a joint bank account and had a social life as husband and wife.

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