Why Your Date of Separation Matters in Divorce
You and your spouse have decided to end your marriage. But while you’d like to get your divorce over and done, your state’s laws may require you to go through a period of separation first.
Why is your date of separation so important?
Individual states govern divorce laws, and they can vary greatly by location. Numerous states require a pre-divorce separation, sometimes called a “cooling off period,” for couples seeking a no-fault divorce. If you live in one of those states, the date of your separation begins that countdown.
But that’s not all. Your date of separation can also affect other important details, from the division of your assets and debts to how much child and spousal support is awarded.
Division of marital property, income, and debt
Every state has laws about how married couples should engage in the division of property in divorce. You might live in a state that adheres to the community property model or a state that adheres to the equitable distribution model. The assets, income, and debts you acquired during your marriage must be divided between you and your spouse according to your state’s laws.
The official date of your separation can play a crucial role in your property division. For example, if your spouse were to accrue a significant debt after you moved out of the marital home, you might argue that you are not responsible for that debt since the two of you had already separated.
In a community property state, marital property is generally divided 50/50. In an equitable distribution state, marital property is not always divided evenly. However, both parties and the court must perceive the division to be fair.
Child support
If you and your spouse have children, the official date of your separation establishes the date that child support will begin. A custodial parent may try to argue that their spouse owes them money for child support during a time prior to the separation date. However, they would have a tough time persuading a judge to buy into that if everyone was still living in the family home at that time.
Similarly, a non-custodial parent may try to argue that they don’t have to pay child support for a window of time after they moved out. If the move-out date is viewed by the court as the separation date, however, a judge would be less likely to rule in their favor.
Spousal support or alimony
The date of your separation could also affect alimony awards. For example, a judge may be ordered to pay alimony from the date the separation began. It’s important to know the date your marital relationship ended and have evidence of it. Otherwise, the issue might require more court time.
Adultery
In some states, adultery can be used as grounds for divorce. Establishing a date of physical separation marks the point at which you or your spouse can pursue another relationship without committing adultery.
Determining your official date of separation
If you’re like many couples, the timing of your separation wasn’t necessarily a line drawn in the sand. You may have talked about it for weeks or even months before one of you made a serious move. You may even have separated and reconciled several times.
But the courts need one date to use as your official separation date. This will be used on your documentation and throughout your divorce proceedings. If you can’t establish an official date for your separation, you may need some verification to determine an exact date to use.
The easiest way to determine your official date of separation is if one of you documented your intention in writing or through emails or text messages. One of you may have signed a lease for a separate residence or moved temporarily to a hotel and have credit card receipts to verify this. You may have opened your own bank account, made comments to friends, or even posted to social media.
But like other matters in divorce, it can become a point of contention if you and your spouse can’t agree on a date to use.
FAQ about date of separation in divorce
What if we disagree on our date of separation?
Because the date of separation can impact so many different things, it’s not uncommon for spouses to disagree on the official date of their separation.
If you and your spouse can’t agree, the court may need to make this decision before finalizing your settlement agreement and divorce decree.. This would require a judge to look for evidence of when you or your spouse began living as unmarried people, even taking sworn statements from friends and family.
It’s best if you and your spouse can find ways to work together to establish a date you both agree on.
Can I get an automatic divorce after a lengthy separation?
Divorce is never “automatic.” But some states allow spouses who have been legally separated long-term to convert that to a permanent separation or divorce. Because not all states allow this transition, it’s important to understand the divorce laws in the state where your legal separation was filed.
Unfortunately, litigating something like the date of your separation can lead to even more contention, which is costly and time-consuming. If you can work together with the help of a divorce mediator, you may be able to negotiate a date that works for both of you. At Hello Divorce, we may be able to help. Schedule a free 15-minute introductory phone call to learn how.
