Divorce laws can vary in many ways between the states. For example, nine states currently strictly follow the community property approach where any assets or property acquired during the marriage will be split evenly when couples divorce. While there are some exceptions like inheritance and personal gifts, most of what the couple owns will be split 50/50 at the time of divorce.
Other states do not follow this rule and will engage in equitable distribution based on various factors like whether there was a prenuptial agreement or the length of the marriage. Besides property distribution, other key areas where divorce laws may differ include child custody, child support, alimony, grounds for divorce, fees, and more.
One thing about divorces that is pretty standard throughout the country is determining the date of separation. This will generally be when the couple ceases to live together as a married couple. While one spouse moving out would clearly demonstrate the beginning of separation, the date of separation can start before that time.
For example, if one spouse moves into another bedroom to sleep and the spouses stopped doing things together as they normally would as a married couple then that can be when the date of separation begins. Filing for divorce can also invoke the date of separation since it shows clear intent by one of both parties to end the marriage.
Some states will require the couple to be separated for a certain period of time before a divorce can be filed or finalized. During this time, even though they are still legally married at least one or both people have the intent to end the marriage in divorce (unless things are worked out in the meantime). The time period generally varies from six months to one year and can vary if the divorce is based on fault or no-fault. Most require a separation period for divorce based on fault, but less do if the divorce is based on no-fault.
Why is the Date of Separation Important for Divorce?
The date of separation is important for states that require waiting periods before filing for divorce or obtaining a divorce decree. Make sure to find out if your state requires a separation period and if it is different when the divorce is based on no-fault. The date of separation will determine when the clock begins and will affect the divorce filing or decree date.
The date of separation is also very important in community property states. Currently, nine states follow community property laws: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. Alaska is considered a hybrid state, where the couple can choose to follow community property laws for asset distribution. In Alaska, both couples will need to sign a joint agreement to proceed as a community property divorce and this cannot be changed back to an equitable division of assets approach after the divorce papers are filed.
As noted above, community property states will view assets acquired during the marriage as equally owned by both spouses, unless a limited exception applies. Most states (including those that are community property) will deem the date of separation to be when the marriage ended, even though the divorce will not be legally finalized. This is why the date of separation has great significance for a community property states – it affects what assets need to be split 50/50 as a part of the divorce property distribution.
For example, say you live in a community property state and your spouse moves out with the intent to divorce on August 1. If you buy an expensive piece of jewelry on August 10, it will not be considered as property acquired during the marriage since you were already separated. You will get to keep the jewelry without having to split the value with your spouse.
For non-community property states that follow equitable division of property, the date of separation is still important. For example, say the spouses entered into a prenuptial agreement, which is a legally binding document created prior to the date of marriage. The prenuptial agreement will outline property and asset ownership in the event of a divorce. The date of separation may be listed in the agreement as a triggering date to no longer count new assets as shared between the parties. Courts will often use the date of separation in conjunction with the terms of the prenuptial agreement when determining if property is owned jointly or separately by the spouses.
How is the Date of Separation Proven?
If one spouse moves out immediately upon intention to divorce, this is a simple situation for the courts and they will recognize the move date as the date of separation. Evidence to provide this could be a lease or deed to new property purchased by the spouse that moved out of the marital home.
When dealing with a divorce where both spouses remain in the house during their separation, there may be more evidence requested by the court to prove the date of separation. Reasons that spouses stay living together often include financial hardships, intending to make the divorce transition smoother for their children, planning to sell the marital house so both parties can move into new separate dwellings, and disputes about who should get to keep the marital house.
In these situations, the spouses will live in separate parts of the house and usually only communicate in limited circumstances, like about matters with the children.
Basically, the court will need proof that the spouses do not intend to reunite and the marriage is over. In these situations, a court may request some of the following things to prove the couple is living apart while still under the same roof and to determine when the separation began:
- Sworn statements from close friends and family members stating that the spouses are in fact separated.
- Visiting the home post-separation will be necessary in order to give the statements merit;
- Photographs of the house that illustrate separation, like separate entrances and bedrooms;
- Proof of separate bank or other financial accounts if the spouses previously shared all or some of their finances;
- Documentation illustrating that the spouses canceled future planned trips or outings as a couple, like a receipt of sold concert tickets or canceled flight;
- Proof that the parties stopped marriage counseling, if they previously were attending sessions to attempt and salvage their marriage; or
- Receipts of separate purchases for groceries, toiletries, or other personal items used regularly at home.
Even where the divorce is amicable, it is important to keep documentation to prove separation and intent to divorce so the process can be expedited.
Should I Contact a Lawyer About My Separation and Divorce?
Since the laws of divorce and specific separation requirements vary between states, it is a good idea to hire an experienced local divorce lawyer that can help you navigate the process. A lawyer can help you with date of separation disputes, collect required documentation to prove separation, and represent you in court.
A lawyer will also be helpful in general during the divorce process to expedite proceedings, help with asset distribution, assist with child custody disputes, and ensure everything is done correctly so the divorce can be finalized as soon as possible under your state’s laws.