Date of Separation in Divorce
What Qualifies as the Date of Separation?
The date of separation is defined as when spouses have come to a parting of the ways with no intention to continue the marriage. Although states vary as to how they define date of separation, the couple's conduct must evidence a complete and final break in the marriage. Conduct such as living apart, by itself, would probably not determine date of separation since many couples live separately without intending to end their marriage.
What is the Importance of Finding the Date of Separation?
The importance of finding the date of separation is for financial reasons. Up until the date of separation, a spouse may be entitled to the property acquired or debt incurred by the other. Especially in a community property state where all property acquired during the course of a marriage is the result of the combined efforts of both spouses, each spouse owns fifty percent of all community property.
If the court finds that one spouse does not intend to resume the marriage, but his or her conduct was not evidence of a complete and final break, all of the post-separation earnings can be considered community property. In that case, the other spouse may seek a later separation date for the possibility of sharing in those earnings, or else seek an earlier separation date if only debts had accrued during that time.
What if the Separation Happened Gradually?
A gradual separation happens when couples are unsure about divorce, and start with a trial separation. Regardless of their actions, as long as the couple remains unsure about ending the marriage, they are not legally separated. Separation occurs when there is evidence of a final break.
Should I Consult With a Lawyer If My Spouse and I Decide to Separate?
Because each state has different laws regarding separation and community property, it is wise to contact a family lawyer in your area who can advise you of the laws of your state in order to protect your interests and assist you during a difficult time.
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Last Modified: 12-06-2012 03:47 PM PST
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