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Sort of Separation

It is surprisingly common to have a divorce case where the parties have been separated for a long time but never cut their ties legally.   Sometimes the period of separation is 10 or even 20 years.  For whatever reason, neither spouse bothered to take care of the formalities to be divorced.

Because of the rules about marital property, this kind of procrastination can result in an unexpected transfer of wealth between the spouses.   All sums earned between the date of marriage and the date of final separation are marital.  Any property bought solely with such funds will also be marital regardless of how it is titled.  And marital property gets divided at the time of divorce.

Typically, one of the spouses accumulates property for years after what they consider to be the date of separation only to have the other spouse claim a much later separation date and insist on receiving half of the property.   This can visit an extreme hardship on the more industrious spouse.

If the separation was a clean break and the parties had little or no contact through the years, the spouse with the property can have a fair chance of the court accepting their separation date.  Ambiguous behavior, on the other hand, can support the later separation date.  In one case the husband had the habit of returning to the marital residence every year to 18 months and sleeping a few nights in the same bed as the wife.  This undermined his argument about the earlier separation date and the case settled on the basis of fixing an arbitrary date between the parties’ positions.  This cost the husband a considerable portion of his retired pay and savings.  

So leaving things in limbo can be quite expensive.  If you don’t want to immediately divorce but want to prevent this from happening to you, you should enter into a postnuptial agreement with the spouse that says that after a certain date, all earnings and property acquired will be the separate property of the spouse who did the work and bought the property.  If the other party won’t sign, it is really better to get divorced.

About the Author

Robert Jeffries
Robert Jeffries