Determining the date of separation is important for valuing the marital estate as well as grounds for divorce. Section 3103 of the Divorce Code defines "separate and apart" as follows: Cessationof cohabitation, whether living in the same residence or not. In the event a complaint in divorce is filed and served, it shall be presumed that the parties commenced to live separate and apart not later than the date that the complaint was served." Accordingly, separation does not mean the parties have to live separately. Many parties still reside in the same home but are considered to be "separate" based on the definition provided by the Divorce Code.
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The date the divorce complaint is filed will generally be accepted as latest the date of separation regardless of whether the parties continue to live together or not. However, the date of separation can be an even earlier date. For example, the date one party does move out of the marital home is usually a clear indication the marriage is over, and hence, an acceptable date of separation. Alternatively, even if the parties continue to reside together, a date of separation can be established when one party makes it clear to the other party that the marriage is over by stating so clearly or even reducing it to writing. The party alleging separation will have to submit an affidavit certifying the date of separation. The other party has an opportunity to object and a hearing may be held if necessary to determine the appropriate date of separation. Accordingly, be sure that the other party is keenly aware of your intended separation, especially if you will continue to reside together and/or hold off on filing for divorce.