Do you know if you are separated from your spouse? Not sure? You aren’t alone. I actually get asked this question often. Many clients believe that in order to be considered legally separated from their spouse, they have to file a certain document with the Court. However, this isn’t always the case.
While states vary in their procedures, (see California) generally, a party does not need to file a document to merely mark a separation. However, it is important to clearly establish your date of separation from your spouse, particularly if your intention is to get divorced.
In this article I will explain the following:
- The difference between separation and divorce;
- Why it is important to establish that you are separated from your spouse; and
- Ways to establish that you are separated.
Separation vs. Divorce
What is separation?
Being separated from your spouse is not the same as being divorced. Sometimes, a separation is simply when one party says they want a divorce. Other times it’s not as clear. So how do you know if you are separated?
I usually explain separation as when a couple goes from acting and living like a married couple to behaving like roommates who don’t like each other very much. Does this make sense?
Some acts of separation are obvious, e.g. one person moves out of the marital home. However, parties can still be living together and be considered separated. In those cases, the parties often begin to sleep in separate bedrooms and no longer eat, vacation, or attend events together. They start dating other people.
In addition to separating physically, changing financial arrangements is also an indication of separation. Separated couples stop using joint accounts and start splitting bills as college roommates would do. They also will change their lifestyle. Modern signs of separation are removal from the family cell phone plan and unfollowing each other on social media accounts.
How is divorce different than separation?
While you and your spouse may be separated and moving on from one another emotionally, you are still technically married to one another. Why does this matter?
Being married has certain attributes that do not disappear when parties simply separate. For example, while you are separated you can not file as “single” on your taxes. This is because you are not single, you are still married in the eyes of the IRS.
Moreover, married people can, and sometimes must, still provide health insurance coverage for each other. Insurance companies do not let divorced people keep their former spouse on their plan. Finally, as a married person, you have certain legal rights to the estate of your spouse, particularly if they die without a will. Divorced persons have no rights to the estates of their former partners.
In order to be considered divorced, you (or your spouse) must file a divorce complaint with the appropriate court where you live and, after complying with the court’s procedures, obtain a divorce decree. That decree will confirm that you are indeed divorced and are free to marry again. Until you have that divorce decree you are unable to get remarried because you are still married to your first spouse.
Why it is important to establish that you are separated from your spouse.
So, why is defining the date of separation so important? The date of separation effects both value of assets as well as the timeline for entry of a divorce decree. I’ll explain both below.
How the date of separation effects the value of assets.
First, the marital value of certain property (i.e. houses, cars, bank accounts, stocks, etc.) is defined as the value of that asset as of the date of separation. Let me give you an example of how the date of separation can affect the value of a 401(k).
Husband has a 401(k) account through his employer. He argues that he and his wife separated in January 2016. As of his proposed date of separation, the account had a value of $50,000. Husband continues to contribute to this account. As a result, it grew in value. Wife argues that the date of separation is January 2018. At that time, the account had a value of $75,000, in part, because Husband continued to put money into the account with every paycheck.
If the parties’ date of separation is disputed, we have to litigate the issue before the Court. This process can be expensive and slow. If Wife wins on the date of separation argument, then Husband’s 401(k) is valued at $75,000, $25,000 higher than the value at Husband’s proposed date.
If Husband had established the January 2016 date of separation, then that $25,000.00 increase in value of the 401(k) would be his alone. Only the $50,000.00 value would be considered part of the marital estate to be shared with Wife.
Not knowing when you are separated from your spouse may delay your divorce decree.
Second, some states require couples to wait a certain period of time after their separation in order to obtain a divorce decree. For example, in Pennsylvania, a couple can not get divorced until 90 days after service of a divorce complaint (if they both agree to the divorce) or one year after date of separation (if they both do not agree).
Having an unclear date of separation may result in the delay of the decree. Besides not getting divorced, this can also cost you money. For example, this may cause you to pay spousal support for a longer period of time or make additional payments for your spouse’s health insurance premiums. All of this could have been avoided if your date of separation had been established for an earlier date.
So how do you establish that you are separated from your spouse?
The end of a marriage is emotional and messy. Sometimes when parties first separate, they do not intend to divorce. This means that the parties’ date of separation may not be well-defined. However, once you realize that the separation is going to end in a divorce, there are ways to protect yourself and establish this important date.
Want to learn how?
First, you can have an attorney right a letter to your spouse (or their attorney) which states that you consider yourself separated and want to use the date of that correspondence as the date of separation. I do this a lot for clients, particularly when they don’t want to be the one to file for divorce.
Second, you can file for divorce. Generally the filing of a divorce complaint is considered the default date of separation if no earlier date can be established.
Third, you can tell your spouse (preferably in writing) that you are separated. However after doing, so you must also act like you are actually separated from your spouse.
My suggestions are: move to a different bedroom, stop having sex, don’t go out to dinner together, and start financially untangling yourself.
Did you just separate from your spouse and aren’t sure what to do next? Don’t worry, I got you! Sign up for my free weekly newsletter and get a copy of my Essential “Just Separated from Your Spouse” Checklist. It is a free step by step guide as to what you should do when you have just separated from your spouse.
Or, are you not sure if you are separated from your spouse? Have questions about separation and divorce? Let me know in the comments!