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While it sounds like a concept in family law that speaks for itself, the Date of Separation does come with its share of caveats. Point blank, it is the day that the marriage has ended. The end of the marriage means the cessation of community property. In a divorce or legal separation, you can bet that there will be a discussion regarding the distribution of assets and debts accrued by both spouses. A marriage is entered with the intention of building a life together, so when things don’t quite go as planned with your spouse or partner, is it really as simple as calling it quits and saying goodbye before flying solo? Hardly.

The purpose of establishing a Date of Separation is key in determining how the assets and debts acquired in the marriage will be divided. It helps with defining the interests and liabilities of each spouse as they prepare for a new phase in their lives. As with most major life changes, a concise idea of what business needs to be handled will prove to be useful, as well as a clear idea of who is responsible for what after the divorce or separation is granted.

Those involved in the process of your separation will be looking for certain things when determining your Date of Separation. Legal jargon aside, at the most basic, easily understandable way, most couples would revert to the date of their breakup as their Date of Separation. This could be the day that your significant other moved out, or the day that both parties had that heavy sit-down conversation. Maybe the events of that day did not go down as calmly, and it was the date of the last, big blow-out fight that the parties had ending with a furious, all-caps, time-stamped text message indicating that you’ve had enough and that relationship was over. For those fence-riders who are still feeling uneasy about pulling the trigger, maybe it’s the day that you retained your attorney. As you can imagine, all cases play out differently, and each couple arrives at their own conclusions of their Date of Separation. The take-away point here is the implementation of action and intention to separate. Once that is established, you will be ready to move forward.

Your attorney however, will have a slightly more objective perspective. Their go-to idea for the Date of Separation will mostly likely be the day that one of the parties moved out of the marital home. In the interest of simplicity, physical distance is the perfect example of the action and intention to separate in play. In terms of assets and debts, the day that one of the parties start to make their own purchases from a separate bank account might be a key indicator, or when bills are paid in the parties’ own name.

In determining Date of Separation, the Courts will apply two separate tests to the facts of the case.

  1. The Objective Test – The date that the parties physically separate (i.e. move out) without the intention of reconciling or repairing their marital relationship.
  2. The Subjective Test – The date when both parties feel the marriage is over. Despite living in the same dwelling, this would take into account the absence of marital activities such as sharing meals, doing chores for each other, engaging in sexual intercourse, filing taxes, wearing wedding rings, etc.

As a testament to the times, most couples nowadays find themselves unable to afford a separate household in the face of marital separation. With the recent passing of SB-1255 however, a greater emphasis will be placed on the physical separation of the parties. This “bright lined” test will now require that those undergoing divorce or separation have to prove that they no longer live in the same dwelling to enact a valid Date of Separation.

So where does this lead us today? At its best, the new measure may urge couples to approach their separation in a careful manner and arbitrarily settle on a Date of Separation to spare themselves the drama of litigation. At its worst, the Date of Separation can proceed as a hotly contested issue with unwanted scrutiny of the marriage to be dissolved. In a way that is beneficial for all, the new measure allows those involved to define the financial responsibilities of the spouses in a more concise matter.

Do you find the imprint of your old wedding band on your finger more defined than your Date of Separation? Are your “bright lines” blurred? Give us a call, and we’ll help you figure it out.

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