One of the first questions a divorce lawyer will ask you when you come in for your initial consultation is ‘What is your date of separation?’
Why is the date of separation so important anyhow?
The “date of separation” is important and can have a significant impact on your rights/obligations in your divorce proceeding. The Court is tasked with dividing equally your community assets and debts. The date of separation marks the end date of the accumulation of community assets and debts. For example, after you “separate” you no longer continue to accrue a share of your spouse’s retirement and you are not responsible for credit card debt incurred by the other party after that date. Additionally, once you have ‘separated’ within the meaning of California Family Law, your earnings are no longer considered community (joint) property. The date of separation also determines the length of the marriage, which can have a major impact on your spousal support obligation/entitlement as the length of the marriage is one of the guiding posts for determining the length of spousal support.
How is the date of separation determined?
***UPDATE PLEASE READ*** The California legislature has enacted a new law that will go into effect on January 1, 2017, which no longer requires a spouse to move out of the family residence in order to establish the date of separation.
Section 70 is added to the Family Code, to read:
(a) “Date of separation” means the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following:
(1) The spouse has expressed to the other spouse his or her intent to end the marriage.
(2) The conduct of the spouse is consistent with his or her intent to end the marriage.
(b) In determining the date of separation, the court shall take into consideration all relevant evidence.
(c) It is the intent of the Legislature in enacting this section to abrogate the decisions in In re Marriage of Davis, (2015) 61 Cal.4th 846 and In re Marriage of Norviel, (2002) 102 Cal.App.4th 1152.
You got it. The date of separation has to do with intent and action. One or both of you indicated that you wanted a divorce and that statement was not later contradicted. Example A: You get in a fight, you scream “I want a divorce.” The next day the two of you agree to try marital counseling and make your marriage work. A date of separation has NOT occurred. Note: You don’t have to move out of the marital home but if you live in the same residence still – your conduct must indicate an intent to end the marriage.
**Please do not make decisions that will affect your future based on things you’ve read on our website. Please seek out sound legal advice that pertains specifically to the facts of your case or pleases schedule a call with us today to find out more information.