by Ed Sherman
In some cases, the date you separate can be important, as it affects the character of both income and liability for debts. In most cases, it won’t particularly matter whether separation was one date or another, so you can just pick a date that seems about right; but there are times when it can mean a great deal, as where a large debt was incurred or a big chunk of money earned near the end of the relationship.
The date of separation is whenever you can prove that one spouse intended to make a complete, final break (not just a temporary separation), with simultaneous conduct furthering that intent. Living physically apart is mandatory, which generally means a separate residence. It is possible to “live apart” in the same house, but this must be shown by clear, unambiguous conduct. Living physically apart does not, by itself, determine the matter because one can live apart without intending a final break. Courts consider evidence of all conduct and circumstances.
Let’s suppose the wife earned a large commission on April 1. And say that on January 15 she had said, “I’m leaving you for good and this isn’t like the other times I said it; this time I really mean it,” and the couple stopped sleeping together from that time on, but it took until April 15 for her to actually move out. The husband thinks the date of separation was April 15 so therefore the commission is community property and he should get half. The wife thinks the separation was on January 15 and her earnings thereafter are entirely her own.
Here’s another case. Does the wife have to pay half of a loan the husband took out two months before she moved out when six months ago he had announced (again) his intention of divorcing her and she believed him so she started sleeping with another guy? It’s often hard to say exactly when the separation actually took place. In these examples, any lawyer would be happy to argue either side, assuming the couple can’t work it out. This is when you need to weigh the cost of fighting against the amount at stake. Things usually work out better when you choose mediation instead of a legal battle in court.
For information on how to save time, money, and emotional suffering when going through divorce, read:
- What Divorce is Really About
- Divorce–Obstacles to Agreement
- Divorce–Overcoming Obstacles to Agreement
- Divorce–Negotiating Agreement
- Divorce–Ten Ways to Divide Property Without a Fight
- Divorce–How to Protect Your Children
- Divorce–Who Can Help?
Copyright 2005 Ed Sherman
Ed Sherman is a family law attorney, divorce expert, and founder of Nolo Press. He started the self-help law movement in 1971 when he published the first edition of How to Do Your Own Divorce, and founded the paralegal industry in 1973. With more than a million books sold, Ed has saved the public billions of dollars in legal fees while making divorce go more smoothly and easily for millions of readers. You can order his books from www.nolotech.com or by calling (800) 464-5502.