This article discusses the very important but many times overlooked issue of the date of separation.
A key piece of information that the Court needs in any divorce or legal separation action is the date of separation, which is the date that the spouses believe that their marriage is over. The date of separation is the essential date for determining property interests. Earnings, debt obligations, and property acquired by a spouse after the date of separation are considered to be that spouse's separate property, while property acquired before the date of separation is considered community property. For example, if you earn a bonus or are given stock options after the date of separation they are most likely your separate property (there are some exceptions). The date of separation may not be that easy to determine. And, the other spouse can pick a different separation date. If you and your spouse do not agree on the date of separation the court will look at two different tests to determine the separation date: a subjective test and an objective test.
Physical separation is not enough to show that you are separated. Some people live separate from each other but do not intend to end their marriage. For example, if one party gets a job in a particular state and the other party can not join him/her because the children go to school in the other state then they are not separated if they don't intend to end the marriage. The subjective intent to divorce is the date that you decided you no longer wanted to stay married.
In addition to the subjective test, the Court will look at the conduct of the spouses toward each other. Usually when one party moves out of the home with the intention of ending the marriage, that is a good indication of the date of separation. But, a spouse does not have to move out to set the date of separation. Spouses, especially in this economy, are finding that they still have to live together even though they have no intention of remaining married. If spouses are still living together, the Court will look at such things as did they travel together, did they still celebrate holidays and birthdays together, did they have sexual relations with each other, etc. to determine the "objective" portion of the date of separation test. There are many other things that show conduct that the Court will look at.
The combination of findings from each of these tests will be used by the Court to establish the date of separation. This date will then be used going forward throughout the divorce or legal separation process for the purpose of property division.
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