Erica Baez Law

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Date of Separation is Really Important

by | Jul 28, 2023 | Family Law

When I was in the military, “Date of Separation” or DOS was on the minds of many armed forces members as they planned for completing their service obligation and beginning a new life as a civilian. It was that date when everything changed, in an instant.

Today, in our family law practice, date of separation has a completely different but equally significant meaning. Many couples have reached a point in their marriage where they mutually decide to begin the process of seeking a divorce.

Most couples want to avoid filing for a divorce based on so-called “fault grounds,” (such as desertion, adultery or cruelty), and instead choose to begin living separate and apart from each other and later file for divorce based on the no-fault basis that they have lived separately for over a year (or over six months if there are no minor children), with at least one spouse intending such separation to be permanent.

This is what we see in our mediation practice, with couples wanting to minimize damage to personal relationships and simply move on with the rest of their lives.

So why is the date of separation so important?

For one thing, Virginia judges do not have the authority to divide assets and debts that were acquired after the separation of the parties. Most clients don’t realize this. They assume that the date of divorce drives the classification of assets and debts as “marital.”

Let’s take one example. Post separation contributions to one spouse’s retirement plan are considered separate property, even though both spouses have a marital interest in the value of the account as of the date of separation. So it becomes a matter of calculating the separate and marital interests.

The smartest step a couple can take is to negotiate or mediate a written agreement that establishes or affirms their actual date of separation. We see many couples who for a variety of reasons have chosen to live in different areas of the marital home, and such a separation can meet legal requirements if the parties have ceased all sexual relations, sleep in separate bedrooms, and lead separate social lives. But these “under one roof” separations can be a source of later disputes absent a written agreement that nails down their date of separation.

A mediated agreement can also help insulate each spouse against claims that they have committed adultery with third parties, because the agreement usually says each party can live as if single.

So remember DOS as you navigate the road towards ending your marriage and dividing assets that were acquired during your marriage. It can make a big difference. And please seriously consider mediation rather than hiring separate lawyers and seeking satisfactory outcomes in the courts. The money you will spend in an adversarial process could be used for your children, your own support and building a nest egg for the next chapter of your lives.

This is Matt Bristol, a lawyer mediator with Erica Baez Law, inviting you to check out our website as, and give serious consideration to mediation. You’ll be glad you did.