There are a variety of reasons why some couples choose to separate and remain separated indefinitely without legally documenting any change to the marriage or seeking divorce. Divorce costs money, and if neither spouse is particularly interested in getting married again, sometimes it’s easier – and cheaper – to just go their separate ways. Maybe one spouse is covering medical insurance for the other and doesn’t want their partner to go without, so they remain married. It could even be a citizenship issue. But whatever the individual reason is, separating for a lengthy period could have an impact on a divorce proceeding in the future, should either party decide they want to end the marriage legally.
Why the Date of Divorce Matters
Regardless of how either party lives or where they live, in Ohio the marriage is considered legally valid until the date of the first day of the final hearing. Even if you’ve lived apart for 10 years, the date of the final hearing is the default date that will be used for defining the length of the marriage and date the property is divided. So why does that matter?
For one thing, the length of the marriage is used in calculating the duration of spousal support if required. It’s also used in determining the value of marital assets, such as a home or a retirement account, and the duration of the marriage could have a huge financial impact in this area.
Splitting Marital Assets
The same asset can have both a marital value and a personal value. For example, if you owned your home before your spouse moved in, the spouse is generally only entitled to split the equity on the house during the time you were married. The same is true of your retirement account. If you open a retirement account at 25, marry at 35 and divorce at 45, your spouse is entitled to 50% of your retirement account for the 10 years you were married. What you earned before you married and what you earn after you divorce is personal property. But what happens if you only separate at 45, and suddenly decide to get divorced at 55? Is the marital asset of the retirement account now based on a 20-year marriage instead of a 10-year marriage?
Making Divorce Equitable
The court does not have to use the date of the final hearing to define the length of the marriage if doing so creates an inequitable resolution. The court can pick a de facto termination date if this presumptive date would be equitable and is based on accepted factors. If either party is asking for a date other than the date of the final hearing, that party must demonstrate why using the hearing date is inequitable.
Setting De Facto Termination Dates
If you – or your divorce attorney –request the court choose a de facto termination date, there are many factors the court can use to select a date. Those factors include, but are not limited to:
- Whether the parties separated on bad terms, such as the result of a fight, infidelity, or domestic violence.
- When did the parties live continually and separately apart.
- When was counsel hired to terminate the marriage.
- Whether the parties both believed the marriage had ended before the hearing.
- Did a mutual agreement exist to separate or end the marriage.
- Did the parties take bilateral actions to terminate the marriage.
- Whether the parties cohabitated with others during the separation.
- The parties’ degree of involvement during the separation.
- Whether the parties lived as husband and wife, such as attending family gatherings together or sending out family holiday cards.
- Was there a parenting plan in place, if there are children.
- Whether the parties maintained separate residences.
- Whether the parties utilized different bank accounts.
- Whether the parties attempted to reconcile.
- Using the final date of the hearing would create an inequitable result.
None of these by themselves automatically require the court to use a date other than the final hearing date, but the court can consider the applicable factors and make a determination to use a different date. Typically, the two factors that carry the biggest weight are whether the parties believes the marriage had ended prior to the final trial and whether using the date of the final hearing would create an inequitable result.
The parties can also agree to use an alternate date; this sometimes makes things easier because it is very difficult to produce evidence of the value of accounts that are constantly changing so picking a specific date creates a clearer picture.
Schedule a Free Consultation
If you’ve been separated and have been thinking about divorce, consult an expert divorce attorney at the family law firm of Kirkland & Sommers. Family law is all we do, and we’ll make sure you get an equitable outcome if you choose to file for divorce. Your first consultation is always free, so come talk to us about your situation and how we can help. Call either office or click below to get started with your free consultation.