Is it time to separate? That may be a strategic question and not just an emotional one.
In Virginia, we classify separate property as anything that was earned, purchased, or acquired before the marriage or after the date of separation. (We also include anything you inherited in your sole name, anything that was a gift from someone other than your spouse, and settlements from things like personal injury cases, but that’s beyond the scope of this article.)
That whole “after the date of separation” thing is important, so I’ll say it again.
Anything you earn, purchase, or acquire AFTER the date of separation is separate property and is not divisible in divorce.
To classify property, we look at the SOURCE of that property. Specifically, was it earned, purchased, or acquired during the marriage, or not? The emphasis here is on whether it was earned and whether it happened during the marriage.
If you came into, say, a trust fund during your marriage, but the source of that money is your parents, and it was left solely to you in your own name, it’s separate property even though it came to you during the marriage. This isn’t marital money; it’s your parent’s money. He has no interest in it in the divorce.
If, though, you worked during the marriage, the money you earned – through your own separate employment at your own separate job unaffiliated with your husband – is marital.
If, after separation, you use marital money to purchase an asset, that doesn’t make it separate – because we’d look at the money itself as a marital asset. If, during the marriage, you use separate money to purchase an asset, it’s separate – because we’d look at the money that was used to purchase the asset as a separate asset.
Make sense? Good.
When are we legally separated?
There’s no formal legal separation status in Virginia; you don’t have to go to court, file any paperwork, hire a lawyer, or sign anything in order to be separated.
You are separated when two things happen: (1) at least one of you forms the intent to end the marriage, and (2) you stop cohabitating.
Cohabitation is a fancy legal word we use to describe living together as husband and wife. It refers to how you behave inside of the home, and how you behave around friends and acquaintances outside of the home. It’s about how you “hold yourself out” or represent yourself to others.
It matters because, for all the grounds of divorce except adultery, you have to show the judge that you’ve lived separate and apart (whether you live separate under the same roof or not) for the statutory period. Even in adultery causes, though you technically qualify for an ‘immediate’ divorce, you will likely also have to prove that you’ve been separated, too – so don’t think you’re off the hook.
You will need to articulate a date certain that this occurred.
From the point that you separate, whatever you earn, purchase, or acquire is yours separately – and this can create some sticky situations.
I’ve heard of parties trying to delay separation because they know a particular bonus is coming, or even of asking bosses to delay bonuses to keep from having to share. I’ve had a couple of cases where the parties lived separate and apart for extended periods and who then argue about when the separation actually took place, usually because one party (or the other) started making significantly more money.
In general, it is best to resolve issues as close to contemporaneously as possible, because this is one of the best ways to help keep everyone honest. It can be challenging, especially as it relates to a bonus, to feel like – especially if it happens quickly on the heels of your separation – it is not so much a separate asset as payment for services rendered during the marriage. You could, depending on the circumstances, potentially make that argument to a court to argue for a different division, but you’d want to talk to an attorney one-on-one about the specific facts in your situation that might make this make sense.
On its face, the law is clear – if it’s post-separation, it’s separate property. Though you may be able to make a different argument, you shouldn’t assume that this is the case.
Keep in mind, too, that litigation is only one option. It may be that, in order to avoid litigation, your soon-to-be ex is willing to negotiate with you on this (or other) points. After all, a speedier, less costly resolution benefits everyone, in most cases.
What if we just can’t agree about when we separated?
This does happen sometimes, though probably not as often as you might think. And, even when there IS a dispute, it’s often not one that makes a material difference. It comes down to one party saying they separated in March and another saying they didn’t separate until June – in a lot of cases, that’s neither here nor there, unless something else (like a bonus) has happened that has heightened tensions.
If you want to gather evidence regarding your date of separation, you can ask your spouse to sign something confirming that you separated on a specific date. It’s not a legal requirement, but it would be good evidence, if you felt you needed it.
You could also look at circumstantial information. How were you behaving? Where were you living? Were you wearing wedding rings? Did you attend a party or go to dinner together? Were gifts exchanged? Can you provide receipts? Did you go on vacation together? Post pictures on social media together? It’s possible you can show – rather than tell – that the separation had not yet taken place, or, on the other hand, that it certainly HAD taken place.
Did you change your status to ‘it’s complicated’? (Ha – I’m kidding, I’m pretty sure that has fallen out of popularity.) Did you share an announcement on social media? (This is more common than you might think.) Did you stop wearing wedding rings? Go on vacation solo? Move out? There are plenty of things you can use as evidence, if it comes down to it.
I’d never suggest that you lie. That should go without saying, but I’ll still say it anyway. I can understand the incentive to lie, if you find out that your husband deliberately delayed a bonus, or if he came into money shortly after the separation. But an attorney won’t be able to help you perpetuate a lie and, if you’re found to be lying, not only could it potentially completely destroy your credibility (and therefore your case) in front of the judge, but your attorney will likely withdraw from representation of you.
You are entitled to what you are entitled to receive; you are not entitled to what you are not entitled to receive. The law is, in many cases, pretty black and white and, like it or not, attorneys have to uphold the law. To the extent that I’m talking about evidence and proof, I am talking about evidence of what actually happened.
If you suspect that your husband is lying – or will lie – we’ll want to gather information about that as well. Keep in mind that when you testify in court – or in a deposition or in your discovery responses – you do so under penalty of perjury. Even if you don’t have a signed statement, keeping a journal about specific conversations, the substance of your communication, and the date can be evidence, especially if he has no such contemporaneous record.