Mark your calendars now: July 28, 2061 will be the perihelion of Halley’s Comet. No, don’t scratch your head; it’s when Halley’s Comet returns; its perihelion is the comet’s closest approach to the sun. Science is a marvel: we can know to the day when an important astronomical event like Halley’s Comet will be on us. Law is sometimes a bit less precise. When, exactly, was your date of separation in your Virginia marriage?

A Slow Break Can Make a Separation Date Tough to Pin Down

Marriages do not always come to a dramatic ending. Sometimes they fizzle out, both husband and wife exhausted by it all. Pinpointing the precise moment may not be as obvious, say, as knowing the exact date of the next complete solar eclipse (as of this writing, August 21, 2017). A marriage may erode; trust may falter; a spouse may be unfaithful but the other spouse not notice right away.

If your marriage does not come to a crashing close, like the final act of an opera, you may not even understand the legal importance of the date of separation. Or, you may acknowledge it but lose track amid the fear, frustration, anger and resentment marking your days.

Date of Separation According to Virginia Code

In Virginia, the date of separation marks the beginning of the divorce countdown. According to the Code of Virginia (if you are a frequent reader of these writings, you know how we love to quote the Code of Virginia), you can file for divorce one year after separation (if you have kids) or six months (if you have no kids). Some action must trigger the start of that countdown clock, though. That action is the legal “date of separation.”

Several events qualify as dates of separation. The easiest one to enshrine legally is a property settlement agreement or separation agreement, because in it the two of you sign that you were legally separated since X date. Another way to declare a date of separation is for one of you to move out and flatly state you will be seeking a divorce. So long as the one moving out does not do so routinely (as a way to stir up marital discord or seek attention, for example), that action counts as the start of the separation.

Separating While Living Under the Same Roof

The date of separation becomes trickier to determine if one of you cannot afford to vacate the marital home, or feels honor-bound to remain for the good of your children. You need to be crystal-clear in your intentions if you are to continue living under the same roof:

  1. Move out of the marital bedroom
  2. Desist having sex with your spouse
  3. Notify your spouse of your intention to get a divorce
  4. Do nothing to help your spouse (no cooking, cleaning, shopping, or any of the many things married people do for each other)

If you have children together, you can associate with each other for family functions, but other than that, you need to advertise and portray yourself as separate and intending to divorce your wife.

The date when you vacate the marital bed is your date of separation. Make a note of it, unpleasant as it may be.

Apogee and Perigee

Marriages take their courses. For most of the time, you long for the two of you to be a perigee or perihelion — at your closest. As a marriage withers, you find yourself distant, apart; you are at aphelion or apogee, furthest apart, to borrow more terms from astronomy.

If the sunlight has dimmed in your marriage, you may not even be able to muster the energy to keep track of simple tasks, but knowing your date of separation is crucial for your financial and personal well-being.

The date of separation also determines the date from which property assignment occurs:

  • Separate property — brought to the marriage by each of you, and returned to each in turn
  • Marital property — acquired during the marriage, to be divided equitably between you
  • Hybrid property — a mix of separate and marital property, as when you owned real estate before the marriage but you and your wife used rental income during the marriage to buy furnishings, invest and so forth

Once you separate, anything you buy is separate property, not acquired in service to the marriage. If you do not have a firm date of separation, your ex-wife could lay claim to the Polaris Sportsman four-wheeler you bought yourself in consolation after your marriage dissolved.

The Date of Separation and Spousal Support

The date of separation can also help you if you have tried to be an honorable Virginian, sending your wife payments during the separation. These payments, although made before your divorce decree, can be counted by a Virginia court towards any defined duration payments, allowing you to be done with spousal support, after the divorce, a bit earlier.

Notify your attorney of the date you consider to be the beginning of your separation, and be sure to provide the names and contact information of corroborating witnesses, such as relatives and friends. They should all be able to say something along the lines of, “Yes, as of October 8, 2017, Leo left Luna and told everybody he was getting a divorce because she was, you know, doing it with Cosmo. I know because that was the date of the Draconids Meteor Shower. Duh.”

Duh indeed. Get your dates and facts straight, and keep your calendar clear, so you can pinpoint precisely when your date of separation was for your Virginia divorce. Contact The Firm for Men at 757-383-9184, or reach out to us online. We are here to help you understand legal terms and legal concepts, like date of separation and what a property settlement agreement is … plus, we have offices in Newport News as well as Virginia Beach. And by the way, we plan to be here long after Halley’s Comet has come and gone.

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