This is a recurring post, regularly updated with new information.
In these challenging times, many people reach a point of no return in their marital relationship. Perhaps a spouse has been unfaithful or abusive, or maybe two people have simply drifted apart over time. Whatever the reason, you’ve made the decision that you need to turn the page and move on with your life.
One of the first steps in the divorce process is the establishment of a date of separation. But why is that important? And how can you ensure that you’ve done it correctly?
A separation date may be crucial to your divorce case for a number of reasons. First, if you don’t have a fault basis for your complaint (adultery, cruelty, desertion, constructive desertion, etc.), then your separation date will determine when you can file for divorce. In Virginia, you must wait one year to file if you have children and/or in the absence of a marital settlement agreement, but you can file after only six months with no children and a marital settlement agreement in place. In some jurisdictions (such as Fairfax County), regardless of fault grounds, you will not be scheduled for an equitable distribution divorce trial until beyond the statutory time period.
Second, your date of separation will have an impact on the marital, separate or hybrid nature of financial accounts, retirement accounts, and other property. In general, with some exceptions, income earned, debt accrued, and items purchased post-separation (with post-separation funds) will be classified as separate property. Also, a court will often give credit to a payor party for post-separation spousal support payments, thereby reducing the post-divorce duration of such payments.
In other words, the sooner you can establish a date of separation, the more quickly you can turn the page on your marriage and the various entanglements that result therefrom. So what constitutes a defensible date of separation?
Virginia caselaw provides for a number of different indicia of a legal separation. One of the brightest lines is the entry into a “separation agreement,” signed by both parties, which unequivocally states that they separated on a certain date with no intention to reconcile. Alternatively, if one party vacates the marital home and informs her spouse of her intention to seek a divorce, this will also do the trick.
However, oftentimes, to benefit the children or out of economic necessity, separating parties will elect to start out with an in-home separation. As long as one party (1) vacates the marital bedroom, (2) notifies the other of her intention to seek a divorce, and (3) the parties cease having intercourse, a date of separation can be established with both parties remaining in the marital home. In these circumstances, there are a number of additional factors that a court will consider to determine whether the parties are indeed separated:
- Do they hold themselves out publicly (to family and friends) as separated?
- Do they attend events or functions together (excluding functions involving their children)?
- Do they take meals together or prepare meals for one another?
- Do they share the same bathroom or closet?
As silly as some of these considerations may seem, they can be crucial in establishing a date of separation, which can have a significant impact on property division, the duration of spousal support, and the timing of your divorce. So take your toothbrush out of your spouse’s bathroom, and take this advice to heart when considering your separation date.
If you find yourself facing separation and divorce, be sure to consult with an experienced family law attorney as early in the process as possible. Livesay & Myers, P.C. has a team of experienced family lawyers with five convenient office locations, representing clients across Northern Virginia. Contact us to schedule a consultation today.
See also: Guide to Separation in Virginia