My practical definition of the date of separation in a divorce is the day that the marital couple stopped being a community in the eyes of the law. The Court’s have been struggling to define this date of separation for many years and have issued many opinions on the subject, while also looking at a lot of different factors in deciding the issue. The problem is, that every divorce is different and bright line rules can create in some cases, harsh results. Thus, the reason why the date of separation has been so hard to define. The date of separation is an important date mainly because it affects issues that involve property division and the potential length of time one will pay or receive spousal support.
The Court’s have recently announced a case on determining the date of separation called, In Re Marriage of Davis. Davis represents a sea change in how practitioners must view the date of separation because it establishes a bright line rule, that essentially states the establishment of a date of separation requires a physical separation of the parties. One might say, that makes perfect sense. However, that was not made clear in previous decisions focused on subjective and objective intent of the parties. Therefore, if you are contemplating a divorce and want to establish a date of separation, usually before that 10 year mark, pack your bags and move out of the house.
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