Protecting Your Interests in Equitable Distribution: How Pennsylvania Courts Define Date of Separation


On Monday March 21, actress Talulah Riley filed for divorce from business mogul, inventor, and engineer Elon Musk. Musk, best known as the founder of PayPal, the CEO of Tesla Motors, and the figure at the forefront of space tourism, has an estimated net worth of 16.5 Billion dollars. The most interesting part of Monday’s filing, however is the fact that this will be the second time that Ms. Riley and Mr. Musk are divorcing one another.

The pair first married in 2010 and filed for divorce in 2012. Shortly thereafter, they reconciled and remarried in July 2013. Mr. Musk filed for divorce again in December of 2014, but later withdrew his complaint. Now, a little more than one year later, they have decided again to dissolve their marriage. The parties’ financial obligations subject to this latest divorce are governed by a Prenuptial Agreement, however this rather unique set of circumstances raises an interesting question: How will courts define a date of separation where there is no “clean break”?

In Pennsylvania, assets existing at the time of a divorce are considered either “separate property” or “marital property”. In equitable distribution, Courts aim to allocate all marital property between spouses based on a list of eleven factors. Separate property includes property acquired before the marriage or after parties have separated. Courts will typically exclude separate property from the equitable distribution process. As a general rule however, any property acquired from the date of marriage until the date of separation will be considered marital and as such will be subject to equitable distribution.

For this reason it is common for divorcing spouses to disagree on the date of separation. For example, a spouse who wins the lottery on July 1st will look to define the date of separation as prior to that time so as to avoid having to split his or her winnings. Because each spouse will aim to set a date of separation most economically advantageous to them, Pennsylvania Courts have set out to define date of separation in a clear and objective way. Very simply, date of separation is the date when parties begin living “separate and apart”. 23 Pa.C.S.A. § 3103 defines “separate and apart” as “the cessation of cohabitation, whether living in the same residence or not”. The statute goes on to provide that where a divorce complaint is filed and served, the date of service is presumed to be the latest possible date of separation. Even so, there are instances where the date of separation pre-dates service of the divorce complaint. Parties may be living separate and apart well before either one moves out of the marital home or retains a family law attorney and files for divorce.

In such an instance, Pennsylvania case law states that “spouses’ intent to dissolve the marital relationship must be clearly manifested and communicated to the other spouse before the spouses can begin to live separate and apart”. Sinha v. Sinha, 526 A.2d 765 (Pa. 1987). Courts will interpret this question on a case-by-case basis. Some common considerations in determining a date of separation include whether the parties slept in the same room and/or were intimate, whether the parties ate meals together, whether the parties took vacations together, and if/when the parties indicated to friends and family that they were separated.

If you or your spouse have decided to move forward with a divorce, identifying an accurate date of separation is essential to protecting your rights and interests in equitable distribution. To discuss how Courts might define your date of separation and what impact that decision could have in your divorce, schedule a consultation with one of our attorneys by calling (610) 892-3877.


About the author

About Christopher Casserly

Chris joined the firm in 2013 after graduating from Villanova University School of Law. While at Villanova Chris focused on Family Law and Alternative Dispute Resolution. In addition, he participated in the Villanova Law Civil Justice Clinic where he advocated for indigent clients facing custody issues. Prior to attending law school, Chris received his B.A. from Providence College where he studied English and French. Chris is a Supervising Attorney and Team Leader at LaMonaca Law. Chris was named a “Top Lawyer” in Family Law by Main Line Today in 2015 and 2017, as well as a Best Lawyer in the area of Adoption in the Delaware County Daily Times. He is a member of the American Bar Association Family Law Section, the Pennsylvania Bar Association, and the Delaware County Bar Association, where he serves as chair of the Family Law Section’s Custody Committee. When he’s not advocating for his clients, Chris enjoys cooking, all things Seinfeld-related, and being at the shore with his family and their dog, Molly.