by Jeff Landers
Looking back on the decision to end your marriage, you may be able to identify a time when you knew things were really over and divorce was inevitable. Some women can even pinpoint the exact moment: “I came home to empty closets and a note on the kitchen counter saying he’d moved out.” Frequently, though, the end of a marriage is a more gradual process: “He was sleeping in the guest room more and more often, and eventually I realized I couldn’t remember when we’d last shared a bed . . . or even had a conversation!”
Either scenario is fine for relating to friends and family who want to know what you’ve been going through. But the precise date of separation can be critically important to the legal divorce process, and in that regard, “Wednesday, May 16” is a lot more useful than “sometime last spring.”
Why the Date of Separation Matters
What difference does the date of separation (DOS) make?
Well, the DOS has significant financial implications on the value of your settlement agreement. In working out the settlement, the figure sometimes used to represent the value of certain marital assets is their value as of the DOS. For assets whose value changes with time – sometimes radically, up or down – you can readily see the tremendous importance of identifying a precise DOS. For example, whether you separated the day before a stock market crash or the day after may have a significant impact on the final value of your divorce settlement agreement.
The DOS is also used as a cutoff date for designating assets as separate or marital property. Generally speaking, all assets and income from the date of your marriage to the DOS are considered marital property. Anything you or your husband acquire after the DOS is considered separate property. Perhaps your husband is expecting a substantial bonus from his work? If that bonus is received after your DOS, it might be considered separate property, and therefore not subject to settlement negotiation.
Similarly, the DOS poses financial implications regarding liability for debts. If your husband intends to buy expensive gifts for his new girlfriend, it goes without saying that it’s better for you if he does it after the DOS.
How the DOS is Identified
Pinpointing the exact DOS can be difficult –and that’s completely understandable. Ending a marriage can be a long, turbulent, emotional haul. And when things are going badly between you, but you don’t yet know that you will divorce, you aren’t thinking of the significance of any particular date. With apologies to Taylor Swift: You and your husband may spend time apart without realizing that you “are never, ever, ever, getting back together.”
If it’s left up to the courts to determine your DOS – either because it’s unclear, or because you and your husband disagree on the date – the judge will want to know, first of all, when you started living apart. If one of you moved out, that day can be used to determine the DOS (though in some cases, even after the divorce is final, there’s still stuff left behind in the marital home by the spouse who ostensibly moved out and moved on). But if, as often happens in difficult economic times, you and your spouse live separate lives under the same roof, it may be difficult to defend why one day should be identified over another as the day the separation occurred.
Plus, like so many other aspects of the divorce process, state laws for determining the DOS vary widely. In some states, such as California, you must show that the physical separation was undertaken with the intent to end the marriage. In others, the date when the divorce suit was actually filed in court is simply designated as the DOS.
What To Do
If you are the one filing for divorce, and you have some flexibility in planning when to leave, it is worthwhile to consider the financial implications of your timing. If you’re embroiled in an ugly legal battle, you’ll need to evaluate the cost of fighting over the DOS against the amount of money at stake. Whether it’s entirely up to you, or whether you’re trying to determine the DOS in retrospect, it’s always wise to Think Financially, Not Emotionally® when it comes to managing your money and planning for a secure financial future.
Jeff is the author of the new book, Divorce: Think Financially, Not Emotionally – What Women Need To Know About Securing Their Financial Future Before, During, And After Divorce, which provides women going through the crisis of divorce with the tools they need to secure their financial future. He is donating 50 percent of all book profits to Bedrock Divorce Fund for Abused Women, Inc.
All articles/blog posts are for informational purposes only, and do not constitute legal advice. If you require legal advice, retain a lawyer licensed in your jurisdiction. The opinions expressed are solely those of the author, who is not an attorney.