By: Jaclyn Zembrodt Taylor
August 16, 2019
“Date of separation” is a legal term of art that officially marks the unofficial end of a union between spouses. In every consultation for divorce, the attorney will ask you for the day you and your spouse separated, or in other words, your “date of separation. This date is required to appear on the Divorce Petition and will appear in subsequent pleadings and order over the course of the divorce process. A common misconception is that one party must move out of the marital home in order for the “date of separation” to occur. While one party moving definitely triggers a “date of separation”, that is not the only scenario that can do so.
Both parties can remain living in the marital home after the “date of separation” and continue to qualify as “living apart”, a requirement for the court to grant a divorce. Kentucky law states that “living apart” or separation includes “living under the same roof without sexual cohabitation” (KRS 403.170). Therefore, spouses who refrain from engaging in romantic or sexual intimacy can still qualify as separated and the “date of separation” could have already occurred. Spouses who continue to live in the marital home after the “date of separation” can take certain steps to ensure the status continues, including but not limited to sleeping in separate bedrooms, living in separate spaces of the home, splitting household bills, and individually purchasing grocery items. The determination of the “date of separation” is important, hence why every divorce attorney needs the information, because the date has significant legal consequences.
One legal consequence of the “date of separation” is that it affects how quickly a divorce can be legally granted by the court. Pursuant to Kentucky law, a divorce decree cannot be issued by the court until the “parties have lived apart for 60 days” (KRS 403.170). In other words, two individuals cannot be divorced before the sixty (60) day window of separation is expired. The window begins when the “date of separation” is declared. In other words, if the parties are intimate on day 50 post separation, the clock starts over.
Another legal consequence of the “date of separation” deals with the repayment of debt. Depending on the situation, the “date of separation” may be used as the cutoff point for marital debt, although the date of divorce is also frequently used. Again, this is a case by case basis depending on the needs of the parties and how the marital money was spent. Generally, debt acquired prior to the “date of separation” is presumed to be marital, regardless of whose name the debt is acquired under. Kentucky law states that the obligation to repay marital debt is equitably divided absent special circumstances or unless an alternate agreement is reached (KRS 403.190). However, the debt acquired after the “date of separation” may be the obligation of the party whose name the debt is acquired under. Again, this depends on the facts in a given case. For example, any credit card opened after the “date of separation” is frequently deemed to be nonmarital, unless used for a martial purpose, such as on the parties children from the marriage.
In deciding which date to choose for your official “date of separation”, think about the date a party moved from the marital home or the date where you began to live with the intention to “live apart” as defined by Kentucky law. There may be more than one option to choose. If there is, seek counsel from your attorney during your initial consultation to discuss the legal consequences of the date of separation.
Photo by Eric Rothermel on Unsplash.