Date of Separation is often a hotly contested issue in California divorce actions. Why?
The reason date of separation is so important is because duration of marriage often profoundly affects two important issues in divorce:
- Spousal Support
- Community Property
When does separation occur?
Separation occurs when either party does not intend to resume the marriage and his or her actions bespeak the finality of the break in the marital relationship. The problems in the relationship must be so serious that there is no reasonable possibility of eliminating, correcting or resolving the issues. In other words — a complete and final breakdown of the marriage.
Of course, the above definition isn’t always easy to determine and therefore many cases are bifurcated to determine the date of separation prior to other issues pertaining to the divorce. Briefly, the court will look to conduct when deciding when a “separation” actually took place. I have litigated cases where one spouse argued that the date of separation was when that spouse moved out of the family residence. Despite this compelling fact, my client prevailed on her claim that the separation date was actually several years later — by offering evidence that the parties continued to eat dinners together, vacation regularly, file joint tax returns and maintain the same mailing address. In a different case, even though the parties continued to reside together and even slept together 1-2 times post-“separation”, the court ruled that they lived “separate and apart” for purposes of date of separation. In that case, the parties had each moved on to serious dating relationships, disentangled their finances (except for the house which they both wanted to keep – but neither could afford on their own), told their families and friends that they were getting a divorce, did not go to any social events together, communicated only by email and slept in separate bedrooms.
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