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Date of Separation – When was it, and why does it matter?

February 22, 2012

image Anusorn P nachol/ freedigitalphotos.net

By Deborah Ewing, Wendy Jones, and Elaine Thompson

When? 

The date on which one or both parties clearly communicate to the other their intent to end the marriage.

There are many details which may be helpful in determining the date of separation, including:

–       Are the spouses still living together?

–       Are they sharing finances?

–       Are they still “working on the marriage?”

–       Have they told anyone they are separating/divorcing?

–       Are they still acting like a married couple in public?

–       Are they still having sexual relations?

–       Has either spouse changed his/her mailing address?

Spouses may not agree on their date of separation.  They may each perceive the situation differently or have a different recollection of events.  When spouses disagree on what the date of separation is, it becomes a matter to be determined later, either by agreement or by a Judge.

Why?

Sometimes the date of separation doesn’t really matter.  However, the date of separation can be important for a number of reasons:

–       The “length of the marriage” is determined by the date of separation, not the date the divorce becomes final.  The length of the marriage can have an impact on such things as spousal support and social security benefits.

–       After the date of separation,

  • Each spouse’s earnings belong to that spouse.
  • New debts incurred by a spouse belong to that spouse.
  • New deposits into benefit plans may belong to the participant spouse

Before your first appointment with a lawyer, it will be useful to think about your situation and the circumstances which might help determine your date of separation.

It should be noted that people frequently claim that they are “legally separated.” Usually they are mistaken.  The concept of legal separation has nothing to do with the date of separation.  It is a separate and unusual legal concept, and a true “legal separation” requires an order signed by a judge.

Deborah Ewing, Wendy Jones, and Elaine Thompson are all experienced family law attorneys in the Los Angeles area, and are members  of A Better Divorce, a Collaborative Family Law Practice Group.

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