Can We be Separated by Just Saying We are?
Moving into the the guest room, or onto the couch, or even into an apartment, doesn’t mean you are necessarily separated either. "Separation" as used in this context is a question of fact to be ultimately decided by the judge if the two parties are unable to agree upon that date. If the parties continue to make meals, take care of the house, do the shopping, do the laundry, file joint tax returns, maintain joint bank accounts and things like this, they are very likely NOT "separated," regardless of what one of them might "declare."
So, What Does "Being Separated" Really Mean?
To be “separated” calls for more than simply the relationship going through a rough spot. It is only after the point where there is no longer any present intention of maintaining your marriage and your conduct and behavior demonstrates a complete and final break in the marital relationship that you are truly considered “separated.”
What are Some of the Things the Courts Look for When Deciding if Parties are "Separated?"
Just “saying” or “declaring” or “deciding” that you are separated is insufficient by itself to support a finding of separation. It is what the parties do and how they act that ultimately determines when the separation has occurred. This is true even if one of the parties to the marriage has moved out of the family home. Maintaining social ties, intimacy, bank accounts, going on vacations, spending holidays together (even if it is only “for the children”), continuing to pay the household bills and things of this nature are inconsistent with the concept of actually being separated.
What if One of Us Files for Divorce? Is That Enough?
Even filing for dissolution will not necessarily trigger a separation. One case has held that doing so simply showed that the parties were contemplating a possible termination of the marriage, where their conduct and behavior displayed efforts to try reconciliation.
How Do the Courts Decide if There is a Separation?
A lot of facts are required to determine whether parties have "separated" or not. When a party says his or her spouse "decided to have a separation" how exactly is that "decision" being manifested? Are the parties still pretty much doing all the same things they used to do before the "separation?" Are they still sleeping together in the same bed? Are they still intimate? These are not required for marriage, but if this is still going on it certainly looks like the parties are NOT separated.
What Can I Do to Ensure That I Am in Fact "Separated?"
There are no solid rules here, but the best advice is for you to act as if your marriage is in fact over. Move out of the house. Stop sharing credit cards and bank accounts. File separate tax returns. Stop socializing together. Remember, if it seems like you are still "together," you probably are.