The date of separation is the date that the parties begin living separate and apart with the intention on the part of one (or both) of the parties not to resume the marital relationship. Living in separate parts of the same house, or sleeping in separate bedrooms, does not count as being separated.
For some spouses, the date of separation may be difficult to determine. This can happen when spouses separate and then get back together, sometimes multiple times, in attempts at reconciliation. If spouses separate and then reconcile, their date of separation is determined by the most recent date that they separated. In other circumstances, spouses may maintain separate residences for employment or other reasons, but there is no intention to end the marriage. The key to determining the date of separation is the date the parties ceased cohabitation and at least one of the parties intended to end the marriage.
The date of the parties’ separation marks the end of the marriage and it is one of the most important dates in the divorce process. It establishes the earliest date that the parties are eligible to file for divorce. Under North Carolina law, the parties must be separated for one full year before a legal action can be filed seeking an absolute divorce.
Intent to End Marriage
The main element to the date of separation is that there must be a record that at least one spouse intended to terminate the marriage. Once the court has finally determined that you have subjectively tried to leave the marriage, the court also needs to find some act that the spouse did in order to objectify his/her intent on paper. A very good example would be if the spouse wrote an email to a colleague speaking of the intended divorce, or if it was shared with a close friend in confidence. In order for a date of separation to be valid, both intention to terminate the marriage and physical separation is required. There is no getting around it.
The date of separation plays a critical role in equitable distribution and determining the parties’ interests in property and debts. The property that the parties acquired during their marriage and owned as of the date of separation is presumed to be marital property that is subject to division. Assets and debts acquired by a party after the date of separation are presumed to be separate property that is owned by that party individually. Therefore, the date of separation can affect the determination of whether an asset or debt (as well as income or an expense) is classified as marital property or separate property. These financial considerations could be significant enough to motivate a party to contest or challenge the date of separation if, as a result, they could potentially share in the value of an asset, or have the other party share in certain indebtedness.
Awards of child support and spousal support may also be impacted by the date of separation. A judge has the discretion to order a supporting parent or supporting spouse to pay child support or spousal support retroactively to the date of separation.