Super. Ct. 1912) ; Alves v. Alves, 262 A.2d 111, 115 (D.C. 1970) ; Nicolas v. Nicolas, 444 So.2d 1118, 1120 (Fla. Dist. Ct. App. 1984) ; Abou–Issa v. Abou–Issa, 229 Ga. 77, 189 S.E.2d 443, 445 (1972) ; Taubenfeld v. Taubenfeld, 276 A.D. 873, 93 N.Y.S.2d 757, 759 (1949) ; Das v. Das, 254 N.J.Super. 194, 603 A.2d 139, 141–42 (N.J. Super. Ct. Ch. Div. 1992) ; Sinha v. Sinha, 341 Pa.Super. 440, 491 A.2d 899, 900–01 (1985), rev'd on other grounds, Sinha v. Sinha, 515 Pa. 14, 526 A.2d 765 (1987) ; Adoteye v. Adoteye, 32 Va.App. 221, 527 S.E.2d 453, 455–56 (2000) ; Williams v. Williams, 328 F.Supp. 1380, 1382–83 (D.V.I. 1971). But see Polakova v. Polak, 107 Ohio App.3d 745, 669 N.E.2d 498, 499 (1995) (holding that wife, in state on temporary "J" status visa, did not "effectively" abandon her home country as domicile because, at the time of the hearing, she "was not legally capable of changing her visa" to a permanent resident status); Sinha v. Sinha, 515 Pa. at 22, 526 A.2d at 768 (McDermott, J., concurring) (explaining husband could not claim domiciliary intent without approval from federal Immigration Bureau to be permanent resident).
"[t]here must be an independent intent on the part of one of the parties to dissolve the marital union" and "the intent must be clearly manifested and communicated to the other spouse." Sinha v. Sinha, [ ] 526 A.2d 765[, 767] ([Pa.] 1987).McCoy, 888 A.2d at 910.
23 Pa.C.S. § 3103. "There must be an independent intent on the part of one of the parties to dissolve the marital union" and "the intent must be clearly manifested and communicated to the other spouse." Sinha v. Sinha, 515 Pa. 14, 526 A.2d 765[, 767] (1987). In the instant case, the parties lived together through November 2002, when [Wife] filed a divorce complaint.
. . ." Sinha v. Sinha, 515 Pa. 14, 526 A.2d 765, 767 (1987). An independent intent to dissolve the marital union must be "clearly manifested and communicated to the other spouse."
Williams, 328 F. Supp. at 1383. In Sinha v. Sinha, 341 Pa. Super. 440, 491 A.2d 899 (1985), rev'd on other grounds, 515 Pa. 14, 526 A.2d 765 (1987), the issue was whether the plaintiff was a domiciliary of Pennsylvania when he filed an action for divorce. The plaintiff was in this country on an H-1 visa as a temporary worker.
We first address [July 31, 2018 as a proposed date of separation for the parties]. As we have indicated above Husband was required to establish "an independent intent . . . to dissolve the marital union" and "the intent must be clearly manifested and communicated to the other spouse[.]" Sinha v. Sinha, 526 A.2d 765, 767 (Pa. 1987). The actions by Husband leading up to July 31, 2018 can arguably show he had an independent intent to dissolve the marital union.
The party seeking to rebut the presumption has the burden of proving that at a time other than when the complaint was filed, one of the parties had the " ‘independent intent ... to dissolve the marital union’ and that the intent was ‘clearly manifested and communicated to the other spouse.’ " McCoy , 888 A.2d at 912 (quoting Sinha v. Sinha , 526 A.2d 765, 767 (Pa. 1987) ).
The party seeking to rebut the presumption bears the burden to prove that before the complaint was filed, one of the parties had the " ‘independent intent ... to dissolve the marital union’ and that the intent was ‘clearly manifested and communicated to the other spouse.’ " McCoy , 888 A.2d at 912 (quoting Sinha v. Sinha , 526 A.2d 765, 767 (Pa. 1987) ). Here, Husband and Wife resided together until they sold their marital residence in 2012.
Husband bears the burden of proof because he opposed the presumed fact that the date of separation occurred when Wife filed the divorce complaint and therefore, he needed to demonstrate that either he or Wife possessed the "independent intent ... to dissolve the marital union" and that the intent was "clearly manifested and communicated to the other spouse." Sinha v. Sinha, 526 A.2d 765, 767 (Pa. 1987). The trial court found Husband's evidence credible, which was within its discretion.
In the context of the now two-year separation required to obtain a unilateral no-fault divorce under Section 201(d), our Supreme Court held that "[p]hysical separation alone does not satisfy the separate and apart requirement[]." Sinha v. Sinha, 526 A.2d 765, 767 (Pa. 1987). "There must be an independent intent on the part of one of the parties to dissolve the marital union []. This intent must be clearly manifested and communicated to the other spouse.