During your initial consultation, your lawyer will ask you whether or not you have separated from your spouse and if so on what date. People are often unsure of the specific date pertaining to their separation and some are under the misleading impression that a legal separation requires one party to move out of the home.
Hello, my name is Anna Troitschanski and I am a lawyer at Feldstein Family Law Group. Today, I would like to speak to you about the date of separation, its legal definitions, and relevance to your family law matter.
The separation date, also known as a valuation date, is an important date for various reasons.
For one, the separation date is the reference point used to determine when marital property shall be appraised. The worth or value of a property may vary depending on the specific point in time that the property is valued. For example if you own shares in a company, the stock may be worth $3.00/share on April 1, 2014 and $0.00/share on April 3, 2014. As such, depending on the date of separation you may or may not have to equalize or share the value of this stock with your spouse, notwithstanding its current or present value.
The separation date also signifies the starting point for the countdown of the limitation period. Our previous blogs discuss the issue of limitation periods for married and common law spouses and I welcome you to review these in detail. For the purposes of this blog, I simply would like to mention the example of s. 7(3) of the Family Law Act which states that married couples may be barred by the passage of time if court proceedings are not commenced within six (6) years of the separation, or within two (2) years after a divorce has been ordered, or within six (6) months after the first spouse’s death, whichever of these time-frames comes sooner.
As such, establishing an accurate valuation/separation date is key and is usually the first step in a family law matter. Parties will often disagree about the date of separation and sometimes engage in litigation about the date. The question then becomes, how do you ascertain the date of separation?
Part I, s.4 (1) of the Family Law Act defines “valuation date” as the earliest of five possible dates.
- The date the spouses separate and there is no reasonable prospect that they will resume cohabitation;
- The date a divorce is granted;
- The date the marriage is declared a nullity;
- The date one of the spouses commences an application based on subsection 5(3) (improvident depletion) that is subsequently granted;
- The date before the date on which one of the spouses dies leaving the other spouse surviving.
For the majority of my clients, the first definition of living separate and apart usually applies. The term separate and apart does not require the parties to live in different homes, but it does require them to be apart in other ways, such as;
- Sleeping in separate bedrooms;
- Not telling others that they are still together;
- Not having meals together;
- Not attending social activities together.
In addition to the separation, there must also be no reasonable prospect that the parties will resume cohabitation. In other words, neither party has taken steps to attempt to rekindle a conjugal relationship in which the parties enjoy each other’s companionship, support, and a sexual relationship.
Thank you for watching.