As many divorce lawyers know, separation periods are common requirements for divorce in many US states. In some states, this waiting period can be as long as 18 months. Many other states have one-year waiting periods, and six-month periods are also common. Even a waiting period of a single month can be frustrating for spouses who simply want to move on with their lives as quickly as possible. 

Legal separation may also affect property division. After the official date of separation, a spouse may acquire separate property – even if they have not yet finalized their divorce. As long as they make certain investments with their own separate income after their date of separation, they should be able to keep these assets after the divorce. 

This raises an important question: What exactly “counts” as separation in the context of divorce? The obvious example of separation is a former couple that lives in two different residences. The official date of separation is often the “move-out day” for the spouse who leaves the family home. But what happens if a spouse decides to remain in the family home during the separation period? 

Some States Allow Spouses to Separate Without Moving Out

The answer depends on where the spouses live. In some states, the only way to legally separate and satisfy the requirements of the “cooling off period” is to live in two different homes. However, some states may recognize a separation period spent living under the same roof. 

One notable example is Kentucky, which enforces a 60-day separation period before divorce. During these 60 days, couples may choose to live in separate homes. However, they may also live under the same roof – but they cannot engage in sexual relations. Delaware has a six-month separation period, and couples may also satisfy this requirement without moving out. Again, they must abstain from sex during this period. Georgia allows for similar arrangements during its one-month separation period, and so does Vermont during its six-month period. 

How Might This Affect Property Division?

Let’s assume that a couple decides to undergo their six-month separation period in Delaware. Each spouse moves into a separate bedroom under one roof, and they begin establishing financial independence from one another. Each spouse might open their own bank account and their own credit card. 

Suppose the husband uses his next paycheck of $4,000 to purchase a new cryptocurrency during the first month of the separation. What happens if that initial investment becomes 400 times more valuable by the end of the six-month waiting period? What if these seemingly worthless tokens are worth $1.6 million by the time the divorce proceedings begin? 

In this situation, you might argue that there is a legal incentive for the wife to claim that she had sex with the husband during the six-month waiting period. If she can convince the court that this intercourse occurred, she could theoretically lay a claim to 50% of the investment’s value. However, she must show the court a “preponderance of evidence.”