By Irving H. Zaroff, JD LMFT and Dana Schutz, MA LMFT

Many couples are unaware of the effects of separating as a prelude to divorce. The key questions are: (1) why does it matter?; and (2) when does “separation” begin?

Why does it matter? The date of separation from a marriage has a significant effect on property rights, liabilities, and spousal support. Spousal support, although subject to a great deal of discretion from the judge, follows general “rules of thumb” that characterize marriages as “short term” or “long term.” Long term marriages are those that are at least 10 years from date of marriage to date of separation. Spousal support in short term marriages are often limited to a period equal to one-half the length of the marriage. Support in long term marriages may be extended indefinitely. This creates a significantly more profound financial impact.

The division of property and debt in a divorce is based on community property laws. The general proposition is that community property is property accumulated during the marriage, and community debt is incurred during the marriage. But property accumulated, or debt incurred, prior to the marriage and/or after the date of separation is generally not community property.

When does separation begin? The date of separation is often the subject of litigation because it is determined by a number of factors, which may or may not include one spouse moving out of the home. The trend of case law in these disputes generally favors a later date of separation over an earlier date (which characterizes earnings and property accumulation as community). The statutory standard is “living separate and apart,” but case law takes into account many factors that negate a simple definition (i.e., living in the same house may be living separate and apart under some circumstances). The key tests include a subjective element that looks at the intention of the separating spouse that can be clearly shown by evidence, and an objective element based on appearances, actions and statements that demonstrate a complete and final break in the marriage.

One of the advantages of a divorce in mediation is the ability to consider the needs of the family and what distributions or support agreements will best serve them. In such cases the date of separation, like all other matters, can be resolved by mutually negotiated agreements rather than by expensive court battles. Beginning the process of divorce mediation can help avoid a future battle as well as help couples in planning during the transition from marriage to divorce.

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