If you are either thinking of or have made the decision to end your marriage and move on with your life, the first step in the divorce process is to establish your date of separation.
Why is establishment of a date of separation important? And, how do you make sure to separate correctly?
It is important to establish your date of separation for several reasons. First, establishing your date of separation determines when you may be able to file for a no-fault divorce. Under Virginia law, you can file for divorce without being separated for anytime frame if you have a fault-based ground (cruelty, desertion, adultery, etc.). If you do not have a fault basis for your complaint, you can file for a no-fault divorce. If you have minor children and/or do not have a marital settlement agreement, you must wait for one full year before you can file for a no-fault divorce. If you do not have minor children and have a marital settlement agreement, you can file for divorce after being separated for only six months.
Second, your date of separation affects the classification of assets as either separate, marital or hybrid. In general, and with some exceptions, assets acquired after the date of separation and with post-separation funds are considered separate property. Similarly, debt accrued after the date of separation are generally considered separate obligation.
Therefore, the sooner you establish your date of separation, the quicker you can file for a divorce and possibly pause accumulation of marital assets and marital debt.
What are some of the facts that help establish your date of separation?
If the parties have a fully signed “separation agreement”, which unequivocally states that the parties separated on a specific date with the intention to permanently stay separate and apart. The date of separation is also established if one party leaves the marital residence and informs the other party that he or she intends to seek a divorce.
However, your date of separation may not be as clear if the parties separated under the same roof. Sometimes, to benefit the children or out of economic necessity, the spouses may start with in-home separation. Under these circumstances, you may still be able to establish a date of separation if you can show that (1) one spouse vacated the marital bedroom, (2) the couple stopped sleeping together and ceased intercourse, (3) one spouse notified the other of an intention to permanently separate and seek a divorce, (4) the parties stopped holding themselves as a married couple to family and friends, (5) the parties stopped attending events together (unless it for the children), (6) the parties stopped cooking for each other and cleaning after each other, (7) they stopped sharing the same bathroom and/or closet. These are some of the factors a court may consider when determining whether the parties indeed separated.
If you are going through a separation and divorce, be sure to consult with an experienced attorney who can guide you through the process. Raheen Family Law, P.C., is here to guide you through this difficult and stressful process. Contact us to schedule a consultation today.