By Sara Pitcher
Cordell & Cordell Indiana Divorce Lawyer
A divorce‘s filing date plays an important part in a dissolution action.
While it may seem like no big deal to the parties involved on which day the dissolution is filed, the date of filing for divorce is significant for many reasons, including its impact on the division of assets and debts.
Spouses may discuss whether a divorce or legal separation is necessary or desired for quite some time before approaching a divorce lawyer to begin the process of getting the action filed with the court. However, it is not until the date that the case is filed requesting to dissolve the marriage or for legal separation that the parties are considered legally separated.
In other situations, the parties separate by moving into separate residences without filing for legal separation. After the trial separation, the parties then decide to move forward with ending the marriage.
This can have a bigger impact than the parties realize because, even though they are living separately, it is likely that the court will consider the date of legal separation to be the date on which the petition for divorce or for legal separation was filed.
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Marital or Separate Property
The court often determines the property to be considered part of the marital estate to be the property that existed on the date the petition for divorce or legal separation was filed.
Often, the assets acquired after that date and put in the name of only one party is the sole property of that spouse. There are exceptions to this rule, especially if the property was purchased with marital funds. However, as a general rule, it largely holds true.
Therefore, anything purchased prior to the date the petition was filed will likely be argued to be marital property and thus subject to division between the parties.
Assets and Liabilities
Property to be included in the marital estate includes both assets as well as liabilities. Therefore, if one of the spouses incurs a debt prior to the filing of a petition for divorce, that debt would arguably be marital property, even if the parties were living separately at the time the debt was incurred.
Also, the earned income of the parties is considered an asset, especially after it is deposited into a marital account or used to pay joint marital bills, such as a mortgage payment for the marital home.
Therefore, the longer the parties wait to file for legal separation or divorce, the more of their individual income is added to the marital estate and available for division between the parties.
Discovery During Separation
During the course of the divorce action, discovery will likely be served to each party, in part to determine what the marital estate consists of. Therefore, documentation such as bank account statements and credit card statements from the date of filing will be requested from each party. This provides evidence to support what the marital estate consisted of on the date the petition for separation or divorce was filed.
The parties may then reach an agreement as to what the marital estate consisted of and an agreeable division of the property, or they will go to a final hearing where the judge will determine which property should be included in the marital estate. After the judge determines what the marital estate consisted of, the marital property will be divided in a manner consistent with the property division laws of your state.
Is Your State Community Or Equitable?
While it is often possible to present evidence to rebut the presumption that property should be included in the marital estate, that presumption can be difficult to overcome. If the parties are aware of the potential consequences, they can determine whether they would like to file for a legal separation during the period that they try to work things out, no matter whether they live separately or together.
If the parties are able to reconcile, the legal separation can be dismissed. If the parties are unable to work out their problems and they decide to proceed with a divorce, the legal separation can be converted into a petition for dissolution of marriage. This way the date of legal separation for determining what should be included in the marital estate has been established and remains during the divorce action.
Establishing a date of legal separation early on can work to protect both parties from the debt acquired by the other party and to protect any assets acquired individually and kept solely in one spouse’s name.
While both spouses continue to be obligated for all debts acquired during the marriage, and must use their individual income to continue to share responsibility for the joint liabilities during the course of the divorce, it also allows the parties to not be further obligated for debts acquired by the other party during the course of the separation or divorce.
Cordell & Cordell has divorce lawyers for men located nationwide.