Did you really say goodbye? What is the date of separation and what is the legal impact of this date in the event of a divorce? | Lasher Holzapfel Sperry & Ebberson LLC
The lyrics “We only said goodbye with words” were written and sung in Back to Black by Amy Winehouse. The song was about the end of a relationship and the theme of goodbye. According to Washington law, “words of farewell” are not sufficient in a divorce to establish separation and the end of the marital community. The logistics of “Goodbyes” are difficult in the event of a divorce, and the date of separation is often disputed. For example, if the spouses live separately without being divorced and one of the spouses wins the lottery. Are earnings a separate property? Or do they belong to the marital community?
In Washington, the date of separation determines the end of the marital community, and this date may be even more important than the date of final divorce. The “date of separation” is the date on which the marriage is considered to be terminated for the purposes of property division. Property acquired before the date of separation is considered community property and property acquired after the date of separation is separate property under Washington law. RCW 26.16.140 states that where spouses or domestic partners “live separately, their respective income and accumulations shall be the separate property of each”.
The date of separation therefore naturally affects the determination of the classification of an asset or a debt (as well as an income or an expense) in joint property or in separate property. These financial considerations may be significant enough to motivate one party to dispute or challenge the separation date if, as a result, they can potentially share the value of an asset or cause the other party to share in indebtedness. Assets that may be at risk are bonuses, stock awards or restricted stock units, and pension contributions to a 401k.
The Washington Supreme Court has interpreted the “separate life” law as requiring proof that a marriage is “dead” before a court can characterize property acquired by either spouse as separate property. When and/or if a marriage is “extinguished” is often the source of disputes. The legal standard is high and requires that both the parties no longer wish to continue the marriage. In a divorce case, this often means the marriage is not extinguished until a divorce is filed with the court. The spouse who wants to benefit from the community of property will generally want to have the presumption of a longer marriage and by extension, of a later date of separation.
Often the date of separation is unclear. Some examples of this are when the parties live under one roof in separate rooms. Or if they live apart but follow marriage counseling and take occasional vacations together. Or one spouse may be having an affair and know their marriage is over, but the other spouse has no idea there is an affair going on. Or maybe they’re going through a “trial separation” but haven’t told their kids or family about it.
How then to prove the date of separation and that the marriage is extinguished? Proving the date of separation requires corroboration and this can be done in several ways:
One form of proof is if either spouse directly writes down their intention to separate and file for divorce. They must not only prove their intention, but also provide proof of it. How do they do this? The easiest way is to express his intention in writing: he can write a letter or send an email to his spouse so that he has objective proof of his state of mind. The separation is recorded in a document linked to a specific date. Moreover, actions speak louder than words; they shouldn’t continue to take vacations together, post couple photos on Facebook, or send vacation cards together. Ideally, they would also start using separate bank accounts.
Another form of evidence is that of a third party witness, other than either spouse. When separating, it is advisable not only to inform your spouse in writing, but also to inform someone else – a friend or a relative – of the separation and also show the friend or the family member you separated. The signing of the rental agreement could be used as proof for the purpose of establishing the date of separation.