When did your marriage really end? Was there a single defining moment that did it? Did you announce it was over to your spouse, friends, and relatives? Or did your marriage just slowly grind to a halt without much discussion along the way? Trying to determine the exact date that your marriage ended can be difficult, but it has some important legal ramifications you should understand before you put down a date.
The legal date of separation isn't always easy to determine.
The date of separation (DOS) is the official date of the breakdown of the marriage—it's the date that one spouse makes it clear to the other that the marriage is over. This can, and does, end up being in dispute for a lot of reasons. Sometimes state law makes it tricky to determine the DOS. In California, for example, there's both an objective and a subjective test used to determine the DOS. One examines things like when the couple started living apart and no longer acted married to others. The subjective standard looks closer at the intentions of each spouse and tries to determine when a marriage really ended despite outward appearances.
That can lead to all sorts of complicated (and legally arguable) scenarios. What if your spouse moved into a small apartment near his or her job, but you still believed it was "just for work." If your spouse never told you that he or she was really leaving you and continued to show up to family functions, do repairs on the home, and pay some of the household bills, then you could hardly be expected to realize that the marriage was over. On the other hand, if your spouse moved into the spare bedroom, closed out all the joint accounts, and announced he or she was only living there for financial reasons, it's hard to say that the DOS hadn't been reached. There are all sorts of possibilities that can make the line between "still married" and "separated" hard to determine.
The legal date of separation can control the way that assets are divided.
The reason that it is so important to determine the legal DOS is that the final distribution of wealth between you and your spouse could depend on it. The wrong DOS could drastically affect what you receive because the assets you are entitled to share are only those assets that were available at the time of the DOS.
That can lead to some serious issues. Imagine, for instance, that you hit the lottery after your marriage is starting to fail but before you officially tell your spouse that it's over and move out. If that happens, you could find yourself sharing the lottery winnings with your ex. On the other hand, if your spouse filed for divorce before you ever bought the ticket, he or she might just be the one out of luck—the court could easily rule that the winnings are yours alone.
This issue doesn't just affect lottery winnings, either—it could affect things as diverse as the amount of money you have in your bank account to the equity in your home. For example, if your spouse is due a large bonus, telling him or her that you want a divorce the week before could make you ineligible to share any of it. Is your house due for a new appraisal by the property tax department? Waiting to announce your decision to divorce until after the appraisal is done could increase the amount of equity that you have in the house—which gets divided between divorcing spouses.
Once you understand how the date of separation can generally affect your financial future, talk to your attorney about your plans for divorce. Your attorney can look over your specific financial situation and help you decide if it is time to officially end your marriage or time to wait a little longer.
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