Prior to the summer of 2015, the date of separation was generally considered to be:
“the date one party expressed to the other party their intent to end the marriage with no intent to reconcile.”
However, Marriage of Davis quickly changed everyone’s understanding of when a couple is actually considered to be separated for purposes of a divorce.
Prior to Davis, if there was a dispute regarding the date of separation, the Court would typically look at the following factors:
- Whether parties continued to live together;
- Filing of tax returns;
- Exchange of birthday presents;
- Celebration of holidays (Valentine’s Day, Anniversary, Christmas, etc.);
- Status of joint bank accounts;
- Social, family, professional activities;
- Marriage counseling;
- Joint travels; etc.
Davis concludes that, to be separated, the parties must be living physically apart and intend on ending their marital relationship. However, as most couples come to realize, immediately separating into two households may not be financially feasible. Under Davis, if a couple is still living together, even if solely for financial reasons, they may not be separated.
The date of separation is important, as it signifies the “financial cut-off” between the parties. After separation, any income that a party earns is his or her separate property. The same concept applies for debts. Any debt incurred after the date of separation is the sole responsibility of the incurring party (with a few exceptions, of course).
Depending on your particular circumstances, you may want the date of separation to be earlier or later. Living separate and apart will affect your case in different ways (think child custody, division of assets, support, etc.). Thus, it’s best to consult with an experienced attorney to get a global understanding of your particular situation.
