When
The ‘Date of Separation’ is generally considered to be the date on which one or both parties clearly communicate to the other their intent to end the marriage. If that discussion is not had, the Date of Separation might be the date on which one of the parties signs the papers to start a divorce proceeding.
There are many details which may be helpful in determining the date of separation, including:
- Are the spouses still living together?
- Are they sharing finances?
- Are they still “working on the marriage?”
- Have they told anyone they are separating/divorcing?
- Are they still acting like a married couple in public?
- Are they still having sexual relations?
- Has either spouse changed his/her mailing address?
Spouses may not agree on their date of separation. They may each perceive the situation differently or have a different recollection of events. When spouses disagree on the date of separation, it becomes a matter to be determined later, either by agreement or by a Judge.
Why?
Sometimes the date of separation doesn’t really matter. However, the date of separation can be important for a number of reasons:
- The “length of the marriage” is determined by the date of separation, not the date the divorce becomes final. The length of the marriage can have an impact on such things as spousal support and social security benefits.
- After the date of separation,
- Each spouse’s earnings belong to that spouse.
- New debts incurred by a spouse belong to that spouse.
- New deposits into retirement benefit plans may belong to the participant spouse
Before your first appointment with a lawyer, it will be useful to think about your situation and the circumstances which might help determine your date of separation. You are not required to have that ‘difficult conversation’ with your spouse in order to establish your date of separation. Sometimes, things are too volatile to discuss it. In that situation, your lawyer will assist with establishing the date of separation.
It should be noted that people frequently claim that they are “legally separated.” Usually they are mistaken. The concept of legal separation has nothing to do with the date of separation. It is a separate and unusual legal concept, and a true “legal separation” requires a Judgment of legal separation signed by a judge.
Deborah Ewing, Esq. is an experienced family law mediator, collaborative attorney and litigation counsel in Southern California