What is the date of separation and why is it important?

In a California divorce, what is the date of separation and why is it important?

The date of separation has significant legal consequences in divorce cases because California courts use this date to determine the respective spouses’ property interests.

California is a community property state, which generally means that the property that the couple acquires during the marriage is considered “community property” and debt acquired during the marriage is “community debt,” belonging equally to both parties. On the other hand, anything acquired after the date of separation (including all earnings and contributions to retirement or pension accounts) is the separate property of the earning spouse. Likewise, debts incurred after the date of separation are the separate debt of the spouse that acquires them.

Spousal support issues, such as amount, duration, and terminability, are also affected by the date of separation. The date on which the spouses separated establishes the parties’ duration of marriage, which is a key factor in determining long-term spousal support. (There are certain spousal support rules in California for marriages that last ten years or more.)

The date of separation occurs when:

  • there is a physical separation of the spouses (such as one spouse moves out of the family home), and
  • either party subjectively intends to terminate the marriage and his or her actions demonstrate this intent. (For example, one spouse sends a text message to the other spouse that he or she is filing for divorce).

Determining whether or not accumulated assets and debts are part of the marital estate can be particularly difficult to assess and, in many cases, divorcing parties claim different dates of separation. If you are thinking about getting a divorce, you should be sure to seek legal consultation if you have any questions about how the date of separation is established or how to proceed in your particular situation.

Posted in: Divorce, Family Law, Spousal Support / Alimony