Are you living uncomfortably with your exspouse under the same roof? You may be asking yourself everyday why you are doing this? Its probably because of two factors: one is the kids, you can’t bear to leave them from their family home where they go to school, and where they have settled into their community with school friends and their activities. The second is because you can’t afford to live on your own.
So you have to live with your exspouse under the same room. This can be called living separately but under the same roof.
The court can consider you separated while living under the same roof, although you are actually residing together. When you go see your lawyer to pick your separation date, which is known as the valuation date in legal terms, you will have to pick a date when you were no longer married, but in fact, were separated even though residing together in the same home.
The court will look at a number of indicia to determine if in fact you were truly separated. Lets take an example. John and Jane are living together under the same roof and have two kids. They sleep in separate rooms, and don’t speak at all. They only communicate about the kids. The court will evaluate the degree of interaction the couple have. Are John and Jane attending functions, vacations, and events together? No? That is a strong indicator of separation.
Are they sharing family expenses together? This could just be an economic arrangement as John and Jane cannot afford to pay for all the children’s expenses on their own, so they are in effect, sharing the payment of the household bills, and the expenses for the children. This does not mean they are not separated. It is simply an economic arrangement.
John and Jane are no longer celebrating birthdays, anniversaries, or vacations together. They reside in separate bedrooms and no longer communicate. This is a very compelling indicia of separation. The court will look at when they stopped being intimate, and when the independant lives began.
John and Jane have seen lawyers but have not moved towards completing any paperwork to commence the divorce process. When they began to see lawyers regarding the separation is also a strong and compelling factor that would motivate the court to accept their position on the valuation date. So in other words, if Jane went to see a lawyer on January 1, 2012 regarding her domestic situation but did not prepare a Divorce Application, and can prove that she went to see a lawyer on that date, while John did not see a lawyer at all, the court will be inclined to accept her date of separation as she actually went to see a professional regarding her domestic situation.
John and Jane attend all the children’s activities separate such as recitals, plays, and parent teacher meetings. The court will look at the date they began attending separately. What is the date that they actually announced they were separated to their friends in emails, or texts. If John failed to tell anyone, but Jane advised several friends in emails that they were separated on January 1, 2012 then the court will also look at that as independant evidence that she was separated from her husband and will examine whether there would have been any motivation to pick this as her date of separation.
Did the value of property change by choosing this date? Was any property disposed of, or bank accounts liquidated? Were stocks, or GIC’s cashed around this time? Is Jane choosing this date simply because its in her best interest financially even though she is still residing in the home with John? These are very persuasive factors the court will examine with scrutiny to determine if the date of separation was real or simply motivated by profit.
When you see your lawyer regarding determining your separation date, make sure you are forthright and honest about all the evidence compelling you to choose your date of separation. It is common that the husband and wife have two different dates of separation, sometimes only months apart. The court will look with scrutiny at all the indicia including any motivating factors behind choosing a separation date especially if it appears random.
I hope this article has helped.
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Until then, be well.
