Date of Separation and Why It's Important
DATE OF SEPARATION v. LEGAL SEPARATION
In California family law, the date of separation has a different meaning from being legally separated. The date of separation is the day that the marital relationship ended (more on this later) which is not the same as the day when the parties are officially divorced. Legal separation is a term used to describe people who stay married but allow the court to divide their property and debts and make orders about financial support.
California law defines the date of separation as (1) the date either spouse indicated their intention to end the marriage and (2) their actions were consistent with the expression of the intention to end the marriage.
THE DATE OF SEPARATION’S EFFECT ON A DIVORCE
The date of separation can have a significant effect on the property division and spousal support.
California is a community property state. Community property is divided 50-50 in a divorce. Property is presumed to be community property when it was earned during the course of the marriage until the time of separation, unless it was acquired by gift or inheritance. As you can see the later the date of separation, the more assets/debts are at stake.
In California, marriages that end after less than 10 years only allow spousal support payments for half the length of the marriage. For example, if the couple was married for 8 years, the higher earner would end up paying support for a maximum of 4 years. However, for marriages lasting ten or more years, spousal support can be ordered without an end date. As such, the later the date of separation, the more likely it is that the lower earning spouse will receive more support.
DETERMINING THE DATE OF SEPARATION
All relevant facts are considered by the court when determining the date of separation. The court will look at facts like where the parties lived, how they held themselves out to the public, if they engaged with each other sexually, exedra. In mediation, one of the first issues we discuss is the date of separation for all the reasons mentioned above. My clients are empowered to settle on a date that they both feel comfortable with.