By Adam T. Kronfeld of Duff & Kronfeld, P.C. posted in Family Law on Tuesday, March 20, 2018.
The date upon which you and your spouse separate and cease living together as a married couple can have significant implications in your divorce. The date of separation affects when you may be able to file for divorce as well as what property may be considered marital or separate. It is therefore a good idea to ensure that you can prove exactly when you and your spouse separated.
Proof of the separation date requires corroboration from a third-party witness, other than either of the spouses. When separating, it is advisable that you not only tell someone – a friend or family member – about the separation, but also show that person that you have separated. If one spouse has moved into a separate residence, you should have your witness visit your home from time to time, so that they can say that they saw no indication that your spouse is living with you. If you are still living in the same home, it can be a little more difficult (not to mention awkward) to have someone examine your separate living space, but you should still make an effort to have them do so.
Often overlooked is that proof of separation also requires that at least one spouse must have had the intent that the separation would be permanent and end in a divorce. In other words, you need to prove what was happening inside someone’s mind, sometimes months or years after the fact. How do you do that? The easiest way is to put your intent in writing: write a letter or send an email or text message to your spouse and your third-party witness (probably in a separate communication), so that you have objective evidence of your state of mind memorialized in a document tied to a specific date.
If you have any questions or would like to discuss your legal matter with an attorney, please contact Duff & Kronfeld, P.C. for a complementary, 30-minute consultation at (703) 591-7475.