While divorce laws vary from state-to-state, in general, the date of separation in a divorce is the date that a married couple no longer lives together as a married couple. While the couple may remain married, the intent of the separation, by at least one of the parties, is to eventually end the marriage in divorce.
The date of separation is especially important in community property states. There are nine community property states:
- New Mexico,
- Washington and
Alaska is sometimes considered a community property state. This is because the marriage laws in Alaska allow couples to choose whether to opt-in to a community property marriage or to follow the equitable division rules. The couple can make the decision before their marriage or while the couple is married. They cannot however opt-in or opt-out of a community property marriage when a divorce is filed.
In a community property state, besides a few exceptions, all assets as well as debts acquired during the marriage are shared equally between the two spouses. Most states, including the community property states, view the date of separation as the end of the marriage. Therefore, in those community property states anything purchased or acquired after the separation would not have to be shared with the other spouse.
Even in the states the states that are non-community property states, the date of separation is still an important factor. Written agreements, like a prenuptial agreement, may be used in any state. A prenuptial agreement is a legal document couples can draft, usually with the assistance of attorneys, prior to marriage stipulating ownership of property and assets in case the marriage ends in divorce. If a prenuptial agreement is in effect, a court will examine the document, the property ownership rules of the particular state and they may also look at the date of separation when weighing in on whether property is jointly or separately owned.
Most courts across the country recognize the date of separation as the day that, at least, one of the parties moves out of the household. Evidence of one party moving out is typically not challenging and can include, for example, documentation showing a lease or purchase of a new dwelling by the spouse that moved out.
There are instances, however, in which a couple has the intent to divorce but, for financial reasons or in order to make a smoother transition for children, the parties are unable to move to separate dwellings. The couple may instead live in separate parts of the same home. Under these circumstances, it may be a bit trickier to prove the date of separation. A court may request additional information and further evidence showing that the couple is now separate and has the intent to divorce.
Evidence of living apart but under the same roof can include:
- Sworn statements from friends and family that can attest to the separation and visited the home post-separation;
- Photos of the dwelling showing separate entrances, living spaces, bedrooms, bathrooms, etc.;
- Proof of newly opened and separate bank, checking and credit card accounts;
- Documentation or receipts showing the cancelation of any future trips, outings or dates together as a couple;
- Documentation proving that any future couples counseling has been cancelled; or
- Receipts for separate grocery purchases in the home.
The court will want to look for evidence showing that there is no future intent to reunite. In other words, the relationship has ended and divorce is imminent.
Not all separations and divorces involve hostility between the couple. Even with a peaceful break up, it is important to document any important information that may show that the couple is “split” and now living separately because this can expedite the court process, save time and save money as well.
As with any legal matter, it is always a good idea to seek out the advice and assistance of an experienced and knowledgeable local divorce attorney. The laws regarding divorce and separation are different from state-to-state.
Separation and divorce from a spouse are life-changing events and can be stressful for all parties involved. Because of the highly personal nature of a divorce, it is important to find the right attorney to represent you. An experienced divorce attorney can assist you with all legal aspects of the divorce and/or separation process, including any potential date of separation issues that may arise.
If you or someone you know has questions regarding divorce or legal separation, contact a divorce attorney as soon as possible. The emotions involved during a separation or divorce can cause much upheaval in your day-to-day life, working with an attorney can assist you through the process and allow you to focus on the future.