The answer here is really easy: No. That’s right, Pennsylvania does not recognize “legal separation”; however, it is, of course, not at all illegal, unlawful or criminal for you and your spouse to live at different addresses. So, it is quite legal in Pennsylvania to live separately, it is just not called a “legal separation”.
There can be a benefit to just filing a divorce and living under separate roofs at separate addresses. Doing so in Pennsylvania gives you “legally separated status”. What’s the benefit? Well, most ordinary folks would not be able to take advantage of it. What it means is that having filed divorce and living apart, actions you might commit could not be legally held against you in a knock-down, drag-out fault divorce filed by your spouse for, as an example, your adulterous conduct. In the real world, if you have a sexual relationship with someone other than your spouse – or your spouse just thinks that you have – and you had not filed a divorce action, your spouse could file a fault divorce for based on the grounds of adultery. So, if you find yourself in that situation and your spouse says, “I’m gonna get you for adultery!”, tell your spouse to proceed. Let your spouse file the divorce. Of course, once your spouse finds out that a fault divorce action will cost around $3500.00 to get off the ground, you know it will never happen. But if it did, who cares? As long as you want nothing by way of settlement from your spouse, let the fault divorce proceed. Let’s face it. Would anyone really care? No one actually reads those court papers and you would get divorced for free.
We have gotten a little off track, but I think that the point has been made clearly enough. No one can force you to stay with your spouse and vice-versa. Leaving is an option and is perfectly legal under Pennsylvania law… but should you? I have in certain circumstances advised clients not to separate. That decision can be financial, economic, emotional, or even tactical. For example, if you want a divorce but your spouse does not, if you leave, you may make life easier for your spouse than if you stayed. I cannot tell you how many times I have found a female divorce client who wanted a divorce still cooking for her spouse and doing her spouse’s laundry. Why would that spouse want a divorce or move out?
Of course, there are situations where staying in the same home is out of the question. First and foremost is physical abuse. It is said that one has nothing if one does have one’s health. Much more importantly, enduring pain is something with which no one should have to live. The very threat of physical abuse may be just as bad as it can be much more frequent and living in fear is a terrible thing. It is true that proven physical abuse can result, by filing a Protection From Abuse complaint, in your spouse being ordered to leave the home. But there is no guarantee that an order will be made. The Courts have had many false claims of abuse resulting in spouses being wrongfully removed, so proof of abuse must be very clear and convincing. Such proof may require the testimony of witnesses and they can be reluctant to testify if they are relatives (such as children) or others who may fear retribution from your spouse. If one loses such an action, things are likely to get even worse at home. Leaving does get one out of the house and going someplace, like a shelter or other safe-haven unknown to your spouse virtually guarantees one’s personal safety.
You may even wish to separate because of continual emotional abuse such as belittling speech or purposeful withholding of attention and/or affection. A very wise person once said to me that attention for which one must beg is not worth having. A corollary of that is that it is better to be alone than in a bad relationship. And, as explained above, your leaving really does not, as a practical matter, expose you to any legal issues later, especially if you left for good cause. In fact, under our fault divorce law wherein desertion is a ground for divorce, Pennsylvania recognizes “constructive desertion” wherein the spouse whose actions force the other party out is actually the party who is doing the deserting.
Preparing to leave, if possible, is a very good plan. Having your ducks in a row will make life alone considerably easier than bolting out of the door with just the clothes on your back. I know a woman who, over a period of months, hid cash here and there so she would be that much better off when the time to leave came. Her husband had no interest in reading, but there were bookshelves filled with books. She knew that when she left, her spouse would never object to her taking the books. Accordingly, she would put $20 bills (or other amounts) between the pages of different books over time. She ended up with a nice nest egg of which her husband was completely unaware. Knowing where you will go is even more important. Being further away rather than closer is the better plan and you may be surprised at who may be willing to take you in, your in-laws, for example. If you have no source of income, there are two things to consider. The first is employment (if you have no job) and the second is filing for spousal support (and child support if the kids leave with you). Filing for the support I listed as second to getting a job as getting support to begin to flow will take some time, certainly many weeks and even months. Moreover, it is easy to do even without a lawyer. The Court system is set up to help you do that on your own.
Once you are out of that untenable, unbearable circumstance, sure it will be difficult, but soon you will feel like you’re breathing fresh air for the first time in a very long time. That will be, literally, a very liberating feeling. At that point, you will need to consider whether or not to begin the process of ending the marriage. It may well be that you will need the spousal support money more than a divorce decree, so do not let yourself get locked into focusing only on ending the marriage. Consider your real needs and act accordingly.
Finally, and before you even begin to plan to leave, call an experienced divorce attorney, and discuss every aspect of your situation. It is true: Knowledge is power. Have it before your next move.