Do you remember the day you separated? How did it happen? Was a note left or an email sent to say it’s over? Maybe a text? Maybe it was a screaming match? Maybe it was just a sad mutual realization that your marriage was over?
Regardless of how it happens, the date of separation is a painful memory, whether you are the one leaving or the one being left.
I remember my "date of separation". It was over seven years ago but the memory of that day remains vivid in my heart and mind today. Each year, when the anniversary of it comes around, I cannot help but think of how dramatically my life changed since the date of my separation.
From a lawyer’s perspective, we need to know the date of separation for three main reasons. This first reason is we use it to determine the equalization of property. Here is an article about the equalization process. Secondly, you can obtain a divorce one year after your separation. The clock starts ticking from the date of separation. Lastly, if support is owed, it likely will begin from the date of separation.
You can still be living under the same roof but considered separated so determining the date of separation can sometimes be difficult.
Some times the date of separation can have a huge impact on the equalization of property. I remember one client who had some shares in a business. If he used one date, he would owe his wife about $10,000 related to the value of his shares. If he used a date three months later, he would have to give her $30,000, because the value of the shares had rapidly increased over that three month period.
The reverse is sometimes true. You might prefer an earlier date because the value of your spouse’s asset was much higher than it is at a future date. This certainly has been the case recently with some businesses and real estate investments that have been dropping in value.
The value of jointly owned assets is less relevant because any increase in value or decrease in value from the date of separation is shared.
Although it is possible to get a divorce on the basis of adultery or physical/emotional abuse, the vast majority of people seek a divorce simply on the basis of a one year separation. It is easy and does not involve any blame.
The date of separation is relevant to support issues too. Support is owed from the date of separation unless there are other payments being made in lieu of direct support payments.
Determining the Date of Separation
If there is some ambiguity about the true "date of separation", the law says you should look at the circumstances of the parties. For example, when did one of the parties communicate their intention to end the marriage to the other; when did the parties start to hold themselves out to family and friends as being separated; when were finances separated; when did sexual relations stop; when were chores were no longer shared; when did the parties physically separate (two beds or two homes); when did the parties stop doing social activities together such as eating meals together or attending events together. This is not an exhaustive list but gives you an idea of the factors taken into consideration. You don’t have to have all of these factors to say there has been a separation. It just depends.
If you are not sure which date to use, consider whether it will impact the bottom line. Maybe compromising on the date is better than fighting over it if the impact is fairly small.
Regardless of what date is called the Date of Separation for the property and support issues, no doubt there will be a day you will always remember as the day you knew your marriage was truly over. Perhaps that is the "emotional date of separation". That date is important because it marks the beginning of the healing process. It is the first day of the rest of your new life.