When does the court decide that the marriage itself is over and done in terms of a clean break between the parties for property division and other important factors? That would be at the date of separation. Many issues can arise when people do not have a precise date of separation. One person thinks the relationship is over, but the other thinks the relationship is just going through a rough patch.
How the Date of Separation is determined
For there to be an official date of separation, there must be two things.(1) an express intent from one spouse to the other spouse that the marriage is over. (2) conduct consistent with that express intent. That means if you say it’s over to your spouse, but continue on as a married couple.
This includes:
- Continuing to live together
- Sleeping in the same bed
- Eating breakfast together
- Still going on that trip to Cancun you both planned
Chances are, legally, you will not be considered to have been separated until your conduct matches up with your words that the marriage is over. Wages, investments, debts, and anything else incurred or accrued are considered community property while together. During the time between you telling your spouse it was over and the end of the trip to Cancun is still considered community property because there was no consistent behavior that the marriage was over.
Exceptions for living together apart
There have been cases where the court upheld the date of separation even when parties continued to live together in the same home. However, the parties in those cases essentially split the entire house in two and definitely did not continue things romantically. Yes, romance is pretty clear evidence that the relationship between you and your spouse did not end. A romantic encounter with your ex can be used against you if you end up in that situation.
So, if you want a clean divorce, you need a clean break and to stay consistent with that position. You need to be over and out of there.
To be over and out: the date of separation can quickly become a complex issue and if you think the date of separation may be an applicable issue in your case, please give us a call at (833) 931-1615 or contact us here to schedule an initial consultation!