Why the “Official” Date of Separation Matters in a Divorce Proceeding

Tuesday, March 17, 2015 | 9:26 pm

A year ago your husband moved out of the house, but has since continued to take you to dinner and the movies, pay the bills, and you even filed joint tax returns. You’ve reciprocated by picking up his dry cleaning, making him dinner and hosting his last birthday party.

Now that the divorce papers are finally on the table, you’ve told the courts that your date of separation was a year ago when your husband moved out, yet he is claiming the date of separation was just a month ago.

The issue of determining the date of separation is one of the very first and arguably most important pieces of information you must designate on a divorce petition or response.

In fact, the date of separation is so significant that it can take a life of its own, requiring an early and separate trial before the remaining issues are resolved.

Why does the court care? It all boils down to earnings and income. All monies accumulated after the date of separation are the separate property of the earning spouse. In other words, if you finally land that lucrative job or earn a long-awaited raise after separation, that money is considered your sole and separate property, and your spouse won’t ever see a dollar of it.

“Evidently, physical separation is not required nor is it determinative of separation,” said Casey Marticorena, partner and certified family law specialist, at the Law Offices of Donald P. Schweitzer in Pasadena.

“In fact, it is possible to be separated and still be living under the same roof! For example, in the scenario above, a judge could reasonably conclude that the parties were still together, despite the separate residences. And let’s say the wife received a job promotion that came with a healthy bonus. If the court rules that the couple were still in fact ‘together,’ then her soon to be ex would have the rights to a portion of that bonus.”

Now let’s look at another scenario. Let’s say that the same couple took a different route when they split a year ago. They still lived under the same roof during that year, but lived completely separate lives—they dined separately, paid separate bills and did not attend any social functions together. In a scenario like this, a court would likely conclude they separated one year ago.

In addition to income earned during separation, this also means that all liabilities and obligations incurred after separation are yours too. Let’s say spouse A in the second scenario thought she would be cleverly vengeful and max out credit cards during the separation. Since the court concluded that the couple separated a year ago, all incurred expenses would be Spouse A’s full responsibility. So if you’re contemplating maxing out your credit cards in a vengeful fit following your separation, you may want to think twice.

Determining the date of separation is an art and requires an analysis of the parties’ conduct towards each other, not just isolated facts such as the date one spouse moved out. It is a fact-based analysis that does not, by any means, have a black or white definition. “Before committing to a date of separation, make sure you understand how to determine the date of separation along with its impact on your legal rights,” says Marticorena. “If you think there will be a conflict in dates, it’s imperative that you have an experienced family law attorney on your side to analyze the facts of your case and your date of separation.”

The Law Offices of Donald P. Schweitzer is located at 201 South Lake Ave. For more information, call (626) 683-8113or visit http://www.pasadenalawoffice.com

 

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