Michigan Attorney talks Date of Separation

As a Michigan Attorney I understand every case is different, and there are some common questions that people have as they face divorce and custody proceedings.

Michigan uses the date of separation as the essential date for determining property interests; property acquired by a spouse after the date of separation is considered to be that spouse’s separate property, while property acquired before the date of separation is community property.

For your initial visit with an attorney they will probably ask about your date of separation, which may or may not be that easy to determine. This is because it’s not always clear when exactly it “happened.” It’s also common for the other spouse to disagree on the separation date.

If you or your spouse can’t determine a date or just outright disagree, the court will look at two different tests to determine separation date: an objective test and a subjective test.

Objective Test
To answer the objective test, the court will determine when you started living apart from each other. That usually happens when one of you moves out of the family home. In today’s tough economic times, however, that is no longer an option for some, because it often is too expensive to maintain two separate residences. Even if spouses are still living in the same home, there are ways to ensure physical separation.

As the Michigan Courts put it, “Our conclusion does not necessarily rule out the possibility of some spouses living apart physically while still occupying the same dwelling. In such cases, however, the evidence would need to demonstrate unambiguous, objectively ascertainable conduct amounting to a physical separation under the same roof.”

Subjective Test
Physical separation is not enough to show that you separated. Some people are living separate from each other for extended periods, but do not intend to end their marriage. That intent is the subjective part the court will consider.

At what point did one or both of you think that the marriage was over? When did you decide you no longer wanted to stay married? The court will look at your conduct toward each other to see when the marriage “ended.”

Remember as a Michigan Attorney I can tell you, it does not matter if you are a resident of Wayne County, which is where most of my divorce as well as criminal and family law is practiced or the surrounding counties and Michigan as a whole, what I have just explained applies everywhere in the state.