The “Date of Separation” Carries Significant Legal Consequences
Married persons and registered domestic partners going through dissolution proceedings are posed with a significant question immediately as they are filling out their Petition or Response document. That question must be carefully considered. The question is, “What is your ‘Date of Separation’?” The date of separation in divorce cases may carry significant legal consequence to one or both spouses. If not selected carefully, it may result in unwanted financial consequences.
The date of separation is a legal term of art and it ends the economic union between husband and wife and domestic partners. Once the date of separation is established, all earnings including contributions to retirement or pension accounts for example, are the separate property of the earning spouse. All debts acquired after the date of separation are the separate debt of the incurring spouse. Remember that assets and debts acquired during marriage by either party up to the date of separation are community property, belonging to both parties equally. For more information regarding community and separate property click here.
The date of separation occurs when (1) the parties physically separate from each other; and (2) either party subjectively intends to end the marriage and does an act to objectify his or her intent. Often times family law litigants allege different dates of separation depending on the facts of their case.
CASE UPDATE: The Marriage of Davis case holds that “physical separation” occurs when the parties are no longer living together.
Physical separation occurs when spouses physically separate from each other. In some cases, this historically meant that a husband moved into a spare room, a wife slept on the couch, or some other scenario where parties remain living in the same house but somehow physically separate from each other. However, recent case law in the Marriage of Davis holds that parties have to live apart from each other. If the parties argue in court regarding the date of separation, it is likely that the court will use the later date. Most appellate cases dealing with the date of separation concluded the later date is more appropriate. In one case, the court found that physical separation only occurs when one party actually moves out of the family residence.
Intent to End Marriage
The second and final element to the date of separation analysis is there must be a finding that one spouse intended to end the marriage. The court must determine that the spouse subjectively intended to end the marriage; however, the court must also find that the spouse did some act to objectify her intent. For example, the spouse may have told her friend that she was going to file for divorce, or perhaps she sent an email to her husband that the marriage was ending. In any event, both a physical separation and an intention to terminate the marriage is required for the date of separation.
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