Divorcing couples are usually most concerned with the date their divorce will become final, but there are a number of reasons why the "date of separation" (when one spouse decides the marriage is officially over) is actually more important. Courts in many states use the date of separation as an important factor in deciding issues related to property division, child support, alimony and adultery.
The specific definition of the “date of separation” varies from state to state, but it’s generally considered the date that spouses no longer live together as a married couple. The most obvious example of a separation is when one spouse moves out of the marital home with the intent of ending the relationship.
Sometimes, however, spouses don’t immediately move out when they intend to end the relationship, for financial or other reasons. In these cases, judges will look to other factors to determine the date of separation. For example, a spouse could prove a date of separation by moving into a separate room in the house or by filing for divorce.
There may also be cases when one spouse moves out of the marital residence but doesn’t intend to divorce the other spouse. In these cases, the court will look for other evidence of when the couple intended to split, such as the date a spouse hires an attorney, communicates to the other spouse an intent to divorce, or actually files for divorce.
In most states, any income that a spouse earns during the marriage is considered marital property (also called “joint property” or “community property”). In other words, each spouse has a claim to the income that either spouse earned during the marriage (unless the couple has a valid prenuptial agreement that says otherwise).
Income that spouses earn after their date of separation is their own separate property. Note that money a spouse earns prior to the date of separation that isn’t paid until after the date of separation is still marital property. What’s important is when the income was earned, not when the income was paid. For example, if a couple separates halfway through the year, but a spouse earns a year-end bonus, the court can decide that half of the bonus is marital property. With stock options or other types of deferred payment, judges typically use the specific circumstances to value the asset as of the date of separation. In some states, however, courts value these assets at the date of divorce rather than the date of separation; check with a local family law attorney to find out how your state’s courts value assets during a divorce.
As with income, other types of property acquired during the marriage but before the date of separation will also be considered joint or community. For example, if the couple buys a home, car, boat, or another other type of property with marital funds before separation, the home will be considered joint or community and will need to be divided either fairly or 50/50 — if the couples lives in a community property state like California.
A famous California case (Rossi vs. Rossi) best illustrates how important the date of separation can be. In December 1996, Denise Rossi won over $1.3 million from the California lottery as part of a lottery pool at her office. She never told her then-husband, Thomas Rossi, about the money. Just one month later, in January 1997, Denise filed for divorce, before she received the first lottery check. Thomas found out about the money after the divorce was final and asked a court to set aside the judgment. The trial court ruled that the lottery winnings were community property because they were earned during the marriage and before the date of separation. And, instead of granting Thomas just one half of the $1.3 million, the court gave him all of it because Denise fraudulently concealed the money during the marriage and throughout the divorce proceedings.
The date of separation can determine when a spouse becomes responsible for child support and/or alimony (also called “spousal support”). For example, if a husband who earns all of the household income moved out of the marital residence, a court can order him to pay temporary child support and alimony from the date he left. In some states, however, a spouse may only be eligible for child support or alimony after filing for divorce and asking for support. It’s important to speak with an attorney soon after your date of separation to ensure you’re eligible to get the support you deserve.
In most states, the duty to remain faithful to your spouse ends on the date of separation. In these states, any sexual conduct a spouse engages in after the date of separation isn’t adultery. Since the couple is already separated, judges won’t consider the relationship the cause of the divorce, unless the relationship began prior to separation. Some divorces take more than a year to finalize, and spouses are free to begin new relationships after the date of separation.