Perhaps a spouse has been unfaithful or abusive, or maybe two people have simply drifted apart over time. One of the first steps in the divorce process is the establishment of a date of separation.
A separation date may be crucial to your divorce case for a number of reasons. In some jurisdictions such as Fairfax County , regardless of fault grounds, you will not be scheduled for an equitable distribution divorce trial until beyond the statutory time period. Second, your date of separation will have an impact on the marital, separate or hybrid nature of financial accounts, retirement accounts, and other property. In general, with some exceptions, income earned, debt accrued, and items purchased post-separation with post-separation funds will be classified as separate property.
Also, a court will often give credit to a payor party for post-separation spousal support payments, thereby reducing the post-divorce duration of such payments. In other words, the sooner you can establish a date of separation, the more quickly you can turn the page on your marriage and the various entanglements that result therefrom. So what constitutes a defensible date of separation? Virginia caselaw provides for a number of different indicia of a legal separation. Alternatively, if one party vacates the marital home and informs her spouse of her intention to seek a divorce, this will also do the trick.
However, oftentimes, to benefit the children or out of economic necessity, separating parties will elect to remain under the same roof at first. As long as one party 1 vacates the marital bedroom, 2 notifies the other of her intention to seek a divorce, and 3 the parties cease having intercourse although some caselaw suggests that infrequent liaisons are permissible , a date of separation can be established with both parties remaining in the marital home.
In these circumstances, there are a number of additional factors that a court will consider to determine whether the parties are indeed separated: Do they hold themselves out publicly to family and friends as separated?
Do they attend events or functions together excluding functions involving their children? Do they take meals together or prepare meals for one another? Do they share the same bathroom or closet? As silly as some of these considerations may seem, they can be crucial in establishing a date of separation, which can have a significant impact on property division, the duration of spousal support, and the timing of your divorce.
If you find yourself at the beginning of the divorce process, you should strongly consider enlisting the help of an attorney to learn more about how to protect yourself and your future. Fredericksburg, Manassas and Fairfax. He is the attorney in the firm most experienced in navigating the Fairfax County, Arlington and Alexandria family courts. An attorney since , Mr. Smith has litigated every type of family law case in the courts of Northern Virginia, including high value equitable distribution cases, custody, support, and military divorce cases.