§ 6.08 Property Acquired During Separation

• Jurisdiction: United States
• Publication year: 2021

§ 6.08 Property Acquired During Separation

Marital property can generally be described as the fruit of the marital partnership. When attempting to identify the extent of the marital estate, a time must be selected for the time at which the marital partnership ends. This time is sometimes referred to as the cut-off date. Acquisitions after the date are separate property.²⁷³

A few states have selected the date the parties separate as the cutoff date.²⁷⁴ This is sometimes an imprecise standard, since the date of final separation can be difficult to determine. If the parties separate, reconcile, and then separate again, the last separation date would be the relevant time.²⁷⁵ Similarly, if the parties separate but continue to be in frequent contact, they may not be considered "separated." For example, in a California case, the parties separated but maintained joint bank accounts and credit cards, the husband continued to visit the wife frequently, the couple took vacations together, the couple continued their sexual relationship, and generally were attempting to reconcile. In this case, the court concluded that the spouses should not be considered "separated" until the parties' behavior showed a complete and final break in the marital relationship.²⁷⁶

Another cut-off date sometimes chosen is the date the divorce action is filed.²⁷⁷ In some instances, a spouse will file an action for divorce, and this first action is dismissed. If the spouses initiate another divorce action later, courts need to determine the appropriate date. No consistent rule regarding this question has yet evolved.²⁷⁸ If the first action was dismissed because the spouses reconciled, the appropriate cutoff date would be the filing date of the second action. If the parties did not attempt to reconcile after the first action was filed, that filing date should be the appropriate cut-off date. In an Indiana case, the court applied the filing date as the cutoff date even though the parties unsuccessfully attempted to reconcile after that date.²⁷⁹

Equitable exceptions to the "date of filing" cut-off date can be made if the marital partnership ended long before that. For example, in a New Jersey case,²⁸⁰ the parties separated in 1965 after a long marriage. In 1966 the spouses orally agreed to a property settlement; in 1967 the wife obtained a separate maintenance order. Eight years later, the wife filed an action for equitable distribution. The court sensibly applied the date of the oral property settlement as the cut-off date. Not all courts have adopted such equitable exceptions. For example, in a Florida case the court concluded that, even though the spouses had been separated for decades, all accumulations until divorce were marital property.²⁸¹

A number of states use as the cut-off date the time a decree of legal separation is entered.²⁸² Others have used the date of divorce.²⁸³ However, some of these courts will use an earlier date if there was a prolonged separation...