In a Pennsylvania divorce should couples consider remaining under the same roof?
October 23, 2012


It seems that more and more separating and divorcing couples are in a position where they continue to reside together for extended periods of time after one or both parties makes the decision to separate or divorce.  One reason for the decision to remain under the same roof is financial.  Often times couples are not in a financial position to separate.  Maybe one person may have been a homemaker and not work outside of the home, making living separate and apart financially impossible.  Or maybe the parties need to first sell the home which is difficult in this down real estate market.  Another reason that parties are continuing to remain together under the same roof is the children.

More and more couples do not want to move from their marital residence until there is some custodial arrangement in place for the children.  More often than not, both parties are actively involved with their children and want to ensure that they maintain that involvement after separation.  As a result, parties are choosing to remain under the same roof until some decision is made about a custody schedule for the children.  Prior to the amendments to the Pennsylvania Custody Laws which went into effect in January 2011, if parties were not able to agree on a custody schedule prior to separating from one another, they had to separate before they could proceed with a formal custody complaint.  While some counties in Pennsylvania would allow the filing of a complaint if a separation was imminent, the law did not specifically allow the filing and therefore, many counties would not entertain a custody complaint while parties were still living together…until now.  The custody law now specifically allows parties still residing together to pursue formal custody actions.  However, any order entered – whether by agreement or by court order – is not effective until the parties physically separate.

While the ability to file a custody action when parties are still living together has been helpful to those couples wanting a custody scheduling in place before separating, there are still a lot of unknowns that may impact the ability to determine what is in the best interest of the children.  First and foremost, where will the parties be living?  Will one be staying in the marital residence?  Will one or both parties they both be moving?  If so, where?  Are the children in school?  If so, will any move take a parent into a new school district?  These are just a few of the many questions to consider when pursing a custody action while still living together.  The more answers that parties have to these questions, the more prepared they will be in moving forward with a custody action prior to physically separating.