By: Jessica A. Saldin
In most divorce cases, the parties are either still living together when the case begins or have recently separated. However, it is also not uncommon for parties to have separated several months, or even years, before the divorce case is filed. In my experience that can be for a variety of reasons. In some cases the parties wanted to take time to attempt reconciliation. In others, the parties simply never got around to filing. Furthermore, in some cases one party left and the other party did not want to file because they did not want the divorce to happen. In sum, there may be a variety of other reasons why spouses wait lengthy times to file for divorce. Regardless of the reasons, if the parties do get to the point of filing a divorce case, a common and reasonable question many parties ask is: what, if any, effect could this long period of separation have on the division of marital property and debts? When reading this article, keep in mind that the court has the power to divide all marital property accrued up to the date of the decree.
The only time that marital property and/or debt acquired during a period of separation will be automatically set aside as one party’s separate property or debt is if it was a period of legal separation. Legal separation is a formal legal process, similar to a divorce, and whether it may be the best fit for your situation will be discussed in a future blog post. If you have received a decree of legal separation, property obtained after that point will be considered your separate property. If you are not legally separated, though, and have only physically separated, the answer to the effect such separation has on the property and debt division is not as clear cut.
It is important to be aware of the fact that property acquired during the marriage, even during long periods of physical separation, is considered marital property. Same with debt accrued during that time. Therefore, if you are considering a divorce, it is best to start the process sooner rather than later to get resolution and to avoid property you acquire being considered marital property (to which your spouse could be entitled) and debt your spouse acquires being considered marital (part of which you could get stuck paying). Continue reading