Date of Separation: What is it? Does it Matter?

One of the first decisions you have to make when going through a divorce is what your date of separation is.

The date of separation is a subjective decision: it is when you decided the marriage was over. Often this date is not clear. Often the two people getting divorced have different dates. In that case, we have to resolve the issue by way of a settlement, or if that proves to be impossible, the Court will determine it at a trial.

The date of separation must be determined because it defines the “community.” It sets forth a date that essentially is a cutoff date. From the date of separation going forward all new debt and assets accumulated are the separate property of the person who acquires those debts and assets. Conversely, all debts and assets that exist at the date of separation, which were acquired during the marriage, are the community property of both spouses. That community property must be divided between the parties in a way that is deemed to be equal. (There are exceptions to this rule which are not addressed here. For example, student debts and gifts or inheritance acquired at any time are the separate property of the person that incurred or received them.)

Another consequence of the date of separation is its impact on the issue of spousal support. The duration of your marriage is one of the most significant factors in determining how long a spousal support obligation will continue.

When deciding what your date of separation is, think carefully about the following:

  • Did you know the marriage was over on a certain date or did you still hold out hope that things would get better?
  • Did you file joint tax returns?
  • Did you continue to live with your spouse in the same house you have always lived in?
  • Did you tell anyone it was over? Did you tell your spouse?
  • Did you send a card or email to your spouse that will contradict your stated date?
  • Did you go to marriage counseling or otherwise work on the marriage
  • Did you openly date other people?
  • Did you separate your finances?
  • Did you take a vacation together?

The beginning of any divorce is often a confusing time. The date of separation is an important detail that must be carefully considered.