Aaron D. Weems, Fox Rothschild

The COVID-19 crisis has proven to be increasingly difficult for people under the best of circumstances. Throughout the crisis, and even during this period of increased openness, people have faced daily challenges like they have never experienced before. Job loss or salary reductions have exacerbated already strained home lives, while home schooling children added another layer of responsibility and stress previously unknown to couples. Currently, summer camps that are often relied upon for summer childcare are canceled or reduced giving no relief for work-from-home individuals or creating greater childcare expenses through the use of hourly help.

Whether it is the stress of this situation or the culmination of years of problems, there are couples experiencing further deterioration in their relationship and marriage and contemplating separation or divorce. Though the coronavirus creates a new lens through which separation and divorce are viewed, the reality is that being separated and under the same roof is not a novel or unusual situation. What has made it novel is that stay-at-home orders, social distancing and isolation have eliminated options for creating space from the other party or taking subtle steps to begin the process of separation or divorce—be they going to a friend's house for a few days, going to a movie or coffee shop for a few hours to escape a tension-filled home or even having a confidential consultation in the privacy of an attorney's office.

Individuals have been forced to consider how they separate while living in the same house.

Pennsylvania law on the subject starts with 22 Pa.C.S.A. Section 3103, which defines separation as living "separate and apart" and as "the 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." In other words, the file date of the divorce complaint is the presumptive date of separation, unless facts exist sufficient to rebut that presumption and establish an alternative date. The impact on the date of separation can be significant in the valuation, accumulation or dissipation of assets and liabilities.

"Cohabitation" is an important concept in this context and it should be noted that Pennsylvania case law defines cohabitation—the act of living together as an intact couple—as the "mutual assumption of those rights and duties attendant to the right of husband and wife," see  Mackey v. Mackey, 545 A.2d. 362 (Pa. Super. 1988). This is another way of describing that the parties are interdependent on each other: they rely on each other financially, emotionally and in other ways typical of spouses. A Pennsylvania Superior Court case examined facts such as the time the parties spent together at home; whether they slept in the same room and ate meals together; did they take vacations or go on outings together; whether they continued to have sexual relations and; whether they lived separate lives or gave the appearance of an intact couple for the sake of children or for social reasons. See Frey v Frey, 821 A.2d 623 (Pa. Super. 2003). See also, Mackey v. Mackey, 545 A.2d. 362 (Pa. Super. 1988). As these cases demonstrate, determining separation can be muddled with the facts ebbing and flowing between "separated" or "intact" relationships compared to the clear line of demarcation created by a divorce filing.

Considering that some of the Frey factors were unavailable under the various periods during the past six months, there are several steps a party can take—beyond moving into a different room—to prepare for and establish separation in advance of filing a divorce complaint:

Clearly communicate your intention to separate to your spouse. The Pennsylvania Supreme Court case Sinha v. Sinha, 526 A.2d 765 (Pa. 1987), established that the spouse's intent to dissolve the marriage must be clearly manifested and communicated to the other spouse before they can begin living "separate and apart." While telling someone you have separated is important, it does not establish separation in of itself. Whether it is done in person or in writing it is critical, in my opinion, that the expressed intent is followed with actions demonstrative actions taken to further the act of separation. If separation is communicated in-person, it should be followed by an email contemporaneous to the time of the conversation that summarizes the discussion and helps establish that the conversation occurred. This may be important later if the parties have two different recollections of the conversation or the date of separation is contested.

While residing together, a party should use that opportunity to collect their financial records. Access to financial records may become difficult as people have increased freedom of movement, so while a party has access they should obtain copies of bank and credit card statements, information on assets, loans or other liabilities; tax returns; pay stubs; your will and estate planning information. This is usually best done in advance of the discussion about separation to ensure that no records are destroyed, hidden, or modified. This does not justify hacking into computers, smartphones, or devices, but should be limited to openly available material to ensure there are no privacy intrusions that may give rise to motions to exclude evidence at trial.

Protect your electronic data. Change your passwords, eliminate auto-logins and delete applications that give easy access to your information. While you may not hack into your spouse's email, there is no way to guarantee they will not try. Additionally, cloud accounts may unknowingly share copies of communications and other data to the account holder. Securing a separate cloud account could be important, but may require a new account. If that is the case, other forms of communication or a separate, dedicated device may need to be used in preparation of separation.

Since financial codependence can indicate an intact marriage, establishing separate financial accounts can help to demonstrate the separation is occurring. Opening a new, individually titled account with your existing bank or a new bank can be done online for almost all financial institutions except the most niche banks. This can be done without a spouse's knowledge, though transferring martial funds into the new account should not necessarily happen at this point. As an alternative, one can update their direct deposit to begin diverting a portion of their pay check to their new account to begin funding it, but also to secure funds and allow for an easier transition as a plan is created for dealing with household bills.

Funding household expenses while separated in the same location can be a challenge.  Being separated does not automatically create a justification to contribute to household expenses or allow a party to default on existing financial obligations. One of the discussions at the time of separation needs to be how financial obligations will be handled while cohabitating and, if possible, what happens after a party vacates the property.

Finally, this is an opportunity to address estate planning documents and beneficiary statuses. Depending on the account, there can be restrictions on changing the beneficiary status without the spouse's consent, but it may be advisable to update estate documents pertaining to a living will, financial powers of attorney or medical powers of attorney. Most people do not want their estranged spouse having legal authority to make financial and medical decisions in the event they are incapacitated during the separation and divorce process.

Employing these recommendations can help establish separation, but will also allow for an efficient transition of this information to an attorney as a party begins the legal process. To that end, the ability to consult with counsel over a secure video platform has made virtual consultations easy and confidential. It eliminates the subterfuge that may be needed to create an opportunity to leave the residence to meet with counsel in an appropriately secure location, while maintaining social distancing. The ability to share screens and documents over video allows for us to efficiently meet with clients and review their documents in real time and begin the preparations for filing for divorce.

Aaron D. Weems is a partner with Fox Rothschild who focuses his practice on helping families and individuals with their legal needs. He can be reached at [email protected].