“Date of separation” is often a hotly contested issue in California divorce actions. Why?
The reason date of separation is so important is that the duration of a marriage often profoundly affects two important issues in divorce:
When does separation occur?
Separation occurs when either party does not intend to continue the marriage, and their actions bespeak the finality of the marital breakup. The problems must be such that no reasonable possibility of eliminating, correcting, or resolving them exists. In other words, separation occurs when there is a complete and final breakdown of the marriage.
Of course, the above definition isn’t always easy to determine. Therefore, many cases are bifurcated to determine the date of separation prior to other issues pertaining to the divorce. The court will briefly look at conduct when deciding when a separation actually took place.
Separation determination examples
We have seen cases in which one spouse argued the date of separation was when they moved out of the family residence. Despite this compelling fact, however, it has been (successfully) argued that separation actually occurred much later thanks to evidence that the parties continued to eat dinners together, vacation together, file joint tax returns, or maintain the same mailing address.
We have also seen cases in which the court ruled a couple “separate and apart” even when they continued to reside together (and even sleep together) post-separation. In these cases, the parties may have each moved on to serious dating relationships, disentangled their finances, told their families and friends they were divorcing, communicated only by email, and maintained separate bedrooms.
How does the date of separation impact spousal support?
The date of separation determines the length of the marriage, and the length of the marriage is key to determining long-term spousal support. This includes its duration and termination date.
California law states that unless there is a written agreement by the parties to the contrary, the court retains jurisdiction (the ability to award) over the issue of spousal support when a marriage lasts 10 years or more (from the date of marriage to the date of separation).
This doesn’t mean support will go on indefinitely, but it does mean that liability will continue for a long time unless the parties negotiate to terminate jurisdiction or the supported spouse remarries or dies.
How does the date of separation impact the division of community property?
With certain exceptions, the majority of property acquired during 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. Even when a property is titled in one spouse’s name only, the court will often divide that property equally unless the opposing party can “trace” its acquisition to a separate source.
If a credit card is maxed out or heavily used before separation, both spouses will likely be responsible for it. Likewise, if an employment bonus is earned before separation, the court will likely order the parties to share it.
If you’re facing a date of separation issue with your case, investigate which property and debt are at issue and whether an alternate date would impact the length of time you would pay or receive spousal support.