“Date of separation” is often a hotly contested issue in California divorce actions. Why?
The reason date of separation is so important is because the duration of marriage often profoundly affects two important issues in divorce:
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 one or two times post-“separation”, the court ruled that they lived “separate and apart” for purposes of the 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.
How does the date of separation impact spousal support?
The date of separation determines the parties’ duration of the marriage. The length of the marriage is a key factor in determining long-term spousal support. California law states that unless there is a written agreement by the parties to the contrary — the court retains jurisdiction (ability to award) over the issue of spousal support when the marriage is 10 years or more (from the date of marriage to the date of separation). While this doesn’t mean support will go on indefinitely, it certainly means that liability will continue for a very long time unless the parties negotiate to terminate jurisdiction and/or the supported spouse remarries or dies.
Additionally, the duration of the marriage is usually a primary factor considered in addressing the length of the support order and termination date (marriage of “short” duration).
How does the date of separation impact the division of community property?
With certain exceptions, the majority of property acquired during the marriage and before separation is presumed to be community property. Community property is considered to be owned equally and is often divided 50/50 or assigned to one spouse while an asset of equal value or an equalization payment is provided to the other spouse. Often, even when the property is titled in one spouse’s name only, the court will divide that property equally unless the opposing party can “trace” the acquisition of the property to a separate property source. If a credit card is a run-up before separation, both spouses will likely be responsible for it. Likewise, if an employment bonus is earned before separation, it will likely be ordered shared equally by the parties.
If there is a date of separation issue with your case, you will want to investigate which property and debt are at issue and whether the alternate date will likely impact the length of time that you will receive and/or pay spousal support.