A Key Date to Remember - Separation

One of the most important dates for a divorcing couple is the date they separate. Almost all couples separate for a period of time before they start the mechanics of getting a divorce, which happens when one spouse serves legal notice on the other that he or she wants a divorce.

The period between the time the couple can be considered intact, living together as man and wife, and the time the decree is handled down is called a separation. The date of separation — called the DOS — can be very important in the distribution of their assets and liabilities.

The jurisdictions use different ways of setting the DOS. In some jurisdictions, it is the date one spouse tells another that he or she wants a divorce; in others, it’s the date a spouse departs; in some, it is the date the couple agrees the marriage is over. In some jurisdictions, it is possible to legally separate and continue to live together under one roof as housemates. What is salient about the date, however, is that as of the DOS, the assets and liabilities of the spouses — what they own and what they owe — are seen in a different light and subject to distribution if they decide to divorce. This can become even more complicated because some states treat the date of separation as the classification date, after which newly earned assets cease being marital or community property and become instead separate property. The date of a permanent separation draws a line in the sand relative to property, income and debts, and the DOS can have an impact on the active and passive appreciation of assets subject to distribution.

A permanent separation happens then the couple lives apart with the intention of divorcing later. In this case, physical separation must be joined with an independent intent by at least one of the parties to divorce.

In most jurisdictions, in order to obtain a no-fault divorce a couple must live “separate and apart” for a specified period. However, some jurisdiction have held that couples can separate “under the same roof”; that is, they have made the decision to end the marriage, gone separate ways but remained domiciled in the same house, usually for economic reasons.

Depending on the jurisdiction, a brief reconciliation or even a night together for “old times” may reset the date of separation. Good legal advice is very helpful.

The word separation is used in at least two other ways in the context of divorce. A separation may be called trial or legal. In a trial separation, couples live apart to “sort out their feelings,” and later divorce or reconcile. If they reconcile, however, the date they separated has no legal importance. A legal separation, which is available in some jurisdictions, confers a different legal status on the spouses. A legal separation divides the marital estate, and the spouses live separate and apart but are still married.

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