A legal separation is when a couple comes to the conclusion that they will not live together. The specific definition of the “date of separation” differs from state to state, but it is usually considered the date that spouses no longer reside together as a married couple. For instance, when one spouse moves out of the marital home with the intent of ending the relationship.
But in some cases, the spouses do not immediately move out when they intend to end the relationship be it for financial or other reasons. In these situations, the judges will examine other factors to determine the date of separation. Generally, property issues can deal with the home, cars, gifts, inheritances, assets, or debts in the couple’s marriage.
How Does the Separation Date Affect Income and Property Division?
Majority of the states, any income that a spouse earns during the marriage is considered marital property also known as community property. This means that each spouse has a right to the income that either spouse earned during the marriage. Income that the spouses earn after their date of separation is considered their own separate property. Keep in mind that money a spouse earns before the date of separation that is not paid until after the date of separation is still marital property.
As with income, other types of property obtained during the marriage but before the date of separation will also be labeled as joint or community. For instance, if the couple purchases a home, car, boat, or another type of property with marital funds before separation, the home will be considered joint or community and will need to be divided either fairly or 50/50. Each state has their own type of property scheme they abide by and it is useful to research those local laws.
How Does the Separation Date Affect Child Support and Alimony?
The date of separation can determine when a spouse becomes responsible for child support and alimony (also known as “spousal support”). For example, if a husband who earns all of the household income moved out of the marital residence, a court may order him to pay temporary child support and alimony from the date he left.
In some states, however, a spouse may only be eligible for child support or alimony after filing for divorce and asking for support. It is recommended to discuss with an attorney soon after your date of separation to ensure you are eligible to get the support you deserve.
How Does the Separation Date Affect Whether a Spouse Commits Adultery?
In the majority of states, the obligation to remain faithful to your spouse ends on the date of separation. In these states, any sexual conduct a spouse engages in after the date of separation is not considered adultery. Since the couple is already separated, judges will not consider the relationship the cause of the divorce, unless the relationship began before the separation. In a general time frame, some divorces take more than a year to finalize, but spouses are free to begin new relationships after the date of separation.
If the parties do not have an agreement, for example in the state of Maryland, The Maryland’s Marital Property Act governs the division of property. Under this specific act, all marital property is subject to equitable distribution. If you and your spouse cannot agree how to divide your property, the court will decide for you on what is marital property, and how much that property is worth. The court will also examine any marital debts (for example, mortgages and credit cards) when determining the value of the marital property. It is crucial to look up the local laws regarding property distribution in your state.
The court will then determine each spouse’s claim of the property. To determine how much to award or transfer to each party, the court will consider the factors below:
- How much each party contributed to the well-being of the family (this includes income, but also contributions such as one spouse caring for the married couple’s children, or doing housework and cooking for the family);
- How much each party’s property is worth;
- The economic circumstances of each party at the time the court makes the award;
- The reason the parties are seeking divorce and how they got there;
- How long the parties were married;
- The age of each party;
- The physical and mental condition of each party;
- How and when the parties obtained specific marital property, including how much effort each party expended to accumulate the marital property;
- How much each party contributed to accumulate the real property (for example, land or a house) held by the parties as tenants by the entirety;
- Any award of alimony or other court award about family use personal property (such as a car), or the family home; and
- Any other factor that the court considers necessary or appropriate to consider to arrive at a fair money award or transfer of property.
Who is Responsible for Debts?
Usually, the court or a divorce agreement can decide who is responsible for any debts. However, it is important to keep in mind if you co-signed with your spouse and your spouse does not make debt payments as they have been ordered, you can still be held responsible by the lender. You should write to creditors to ask them to close any joint accounts if any are there. Otherwise, you will be held legally responsible for the current debt and any future debt if your spouse continues to use the account.
Additionally, a creditor can still sue you if your spouse fails to make payments on the debt that you had co-signed. Sometimes the creditors can sue you even if there is a court order that states your spouse is responsible for the debt. It is a priority to make sure that you are taken off any open joint accounts you may have opened with your spouse. However, you are not responsible for any debt that you did not co-sign for.
In some scenarios, the court can order the home to be sold. But, If one of the parents has custody of the children, the court can delay the sale (usually until after the child has graduated high school). The court can also award the house to one of the spouses. This decision will be made by all the things that affect equitable distribution.The court will examine how much the home is worth too. Lastly, it will also look at any mortgages and the other types of housing options.
What are Exclusive Occupancy Rights?
In general, exclusive occupancy rights give one spouse the right to live in the house. The other spouse has to find somewhere else to live. These rights can be granted to the parent with the custody of the children if the court has delayed the sale of the home. They can also be given for the safety of one of the spouses while the divorce is being finalized. Courts can give orders of protection, which can prevent the person from entering the home or being in the premises of it.
When Do I Need to Contact a Lawyer?
If you are filing for a legal separation and have concerns about the property issues that may arise. It will be helpful if you contact a local family lawyer to assist with the process to make the transition smoother and efficient for you and your family.