In most cases, people can agree on the date of separation. When my clients ask me how to decide when they were separated I ask them when they stopped acting like a married couple. There is no one thing that marks a separation definitively (although one person moving out is usually a pretty good indication).
If the date of separation is disputed the court will consider when you stopped sharing a bed, eating meals together, and going to social functions as a couple. It is important to note that it is possible to be considered separated even when you are living in under the same roof. This is a common situation as couples may be forced to live together after they have separated due to financial and other practical reasons.
The date of Separation is important in family law for two reasons; division of the marital assets and debts, and getting a divorce. In most cases, you may not file for a divorce until you have been separated for at least one year. There are exceptions for cases where there has been adultery, or cruelty by a spouse. Even relying on those exceptions, by the time the paperwork is filed and you have a trial date set, you may not be able to get divorced that quickly.
The Matrimonial Property Act includes a presumption that all the assets and debts of the relationship should be split equally between the couple. In Nova Scotia, assets including inheritances, business assets, and insurance payouts may be excluded, but the person who wants them excluded has the burden to show they should be excluded.
In cases where the date of separation is contested, it is usually because of the impact it can have on the final division of property. This is especially common where credit card debt gets racked up at the end of a relationship. The difference between splitting a debt or taking it all on yourself can be huge in some circumstances.
If you are separated for under a year and still want to get a divorce you can work on negotiating a separation agreement. Click here for more information on planning for your separation.
Do you have questions about the date of separation or any other family law issue? You can schedule a no obligation Issue Review Consultation by calling (902) 826-3070 or visit www.highlanderlaw.ca for more information.
Peter G. Duke - Associate Lawyer
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