Negotiating a Separation Agreement

One of the first decisions to be made when negotiating a separation agreement is the date of separation.  This date is important for two reasons:  first, one of the grounds parties can rely on to obtain a divorce is that they lived “separate and apart” for at least twelve months.  Second, the increase in the value of property to be divided is calculated as of the date of separation in order to then determine property division.

More and more often couples remain in the same home even after having separated while they determine future parenting arrangements and for financial reasons.  For family law purposes, it is indeed possible to be separated while living under the same roof.  It all comes down to how we define “living separate and apart.”

A host of factors is taken into account although even the most obvious, an actual physical separation, may not necessarily signify living separate and apart.  There is case law supporting a conclusion that spouses who live in separate homes do not necessarily meet the definition of “living separate and apart.”   Even the fact that both parents continue to attend family functions or other activities involving children does not necessarily mean that they are not separated, although it may be a factor.

There have been trials to determine the separation date.  The dates suggested by each spouse could be as much as several years apart.

Given the impact of a separation date on the financial outcome of the separation, and on the timeline to obtain a divorce, it ought to be agreed to early in the negotiations.