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Choosing an Official DATE of Separation

Anonymous Asked:

My spouse and I have decided to separate. We are still living in the same house and plan to do so until approximately January 2015. We live in separate rooms. I was recently told by a family lawyer (not retained, just 30-minute free consultation) that we cannot choose a date in the future to be our separation date. I wanted to use January 1, 2015, to make a clean break for tax purposes. The lawyers says we have to choose the date at which we agreed verbally to separate. Is this true? I cannot find any literature on this alleged requirement. I understand the date can be very important in terms of FMV of debts and assets etc. But that is not relevant in this case. Thank you!

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Andrew J. Kania, LL.B., LL.M.
10 years ago

Answer: The date of separation is very important. It starts the one year time period for a divorce; if the separate and apart for one year ground is being used (there are other grounds). It also freezes your property rights. Selecting the date of separation is sometimes difficult, as parties can be legally separated while living in the same home. The key to a proper analysis is as follows: 1. Of course, if you are signing documents saying what the date of separation is you must be truthful; and 2. Generally speaking, parties mutually agree on the date of separation and for all practical purposes that is the date that is accepted. 3. If the parties cannot agree on the separation date, then a Judge will decide. So, in summary, parties are free, if they are able, to select whatever separation date that they wish, as long as they both agree and they are being honest. You are welcome to call me at: 1-877-668-9386 for a free consultation.

(The information provided above is general, not legal advice, as circumstances vary from case to case. Thus, if you wish legal advice that you can rely upon for your specific case, please contact Douglas Briand for a free consultation).

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