In California divorce cases, the date that you separated from your spouse can be one of the most important initial issues you will be confronted with in your divorce. You can even have a separate trial on the bifurcated question of your date of separation. That trial will be conducted even before the trial on support and property disposition.
As we will show with more detail below, the major reason that date of separation is such a significant issue in your case is because both community property and spousal support will be based upon your date of separation. In other words, you will need to fix the date of your separation before you can figure out what your spousal support may be and what property you are entitled to receive.
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Remember, while you are married, with limited exceptions, all earnings (income) from your labor, and debts you incur, are considered community property or community debts. Community property is treated as if it is owned equally by both spouses and it is generally equally divided in a divorce. On the other hand, separate property is awarded to the spouse who owns/earns it. Indeed, the date of separation will end the marital economic and spiritual union that exists between husband and wife. At the point that the union is ended, all earnings from you work, as well as contributions to retirements accounts or pension benefits, will be your sole and separate property.
Similarly, all debts incurred by each spouse after the date of separation will be the debt of the spouse who incurred the obligation. Along those lines, property acquired by a spouse after the date of separation is considered to be that spouse’s separate property, while property acquired before the date of separation is community property.
Let’s look at example. On March 1, in our example, husband earned a big real estate sales commission check for his sale of a home. Wife told husband that she wanted a divorce on January 1, but never moved out of the family residence. She didn’t move out of the home until June 1. He may think that because she told him she wanted a divorce before he earned his commission check that it is his separate property–but, he would be wrong. Since he didn’t move out until June 1, both conditions to establish the date of separation have not been satisfied. Therefore, they will not have been separated until June 1, the date wife moved out and the big commission check will be community property.
One of the first questions you will be asked by your Orange County divorce attorney on your first visit may be about your date of separation. It could be one of the most significant issues in your divorce case and deserving of special consideration by an experienced divorce lawyer.
What is your date of separation
For current cases in California, it is fairly easy to determine the date you were separated. In short, your date of separation was when
- The date you physically separate from your spouse and live in separate residences; and
- The date either spouse has the subjective intent to end the marriage, which intent is objectively evidenced by words or conduct.
Physically separate from spouse
The first condition that must occur before your date of separation can be established is that you and your spouse must physically separate and not live under the same roof. That means you must be living separate and apart from your spouse–one of you must move out of the family residence. In July 2014, the Supreme Court in California issued an important opinion dealing with date of separation and held that you must live “separate and apart” from your spouse before you can be considered to be separated from your spouse. In the Marriage of Davis, the court announced a bright line rule that states you must live in separate residences to have your earnings accumulate as your separate property. In short, the actions you take to have a physical separation as a couple
Although the court recognized that this bright line rule could cause hardship in some relationships, and avoid litigation in other cases, it may be difficult for less affluent couples to maintain two households, the court stated that the state legislature should fix the rule to prevent such hardships. In fact, Senate Bill 1255 (Moorlach-Costa Mesa) will change this bright line rule back to the more objective test.
Intent to end the marriage
The second condition that must be present before the court will find that you have separated is that one spouse must have the subjective intent to end the marriage and that intent must be objectively evidenced through words or conduct reflecting that there is a complete and final break in your marriage. In summary, it is your burden to prove with evidence that you must want to end your marriage and you must show or tell your spouse you want to end your marriage. In most cases, you should either discuss your decision together with your spouse or send them an email, text or letter.
Impact on spousal support
So far we have seen how the date of separation may impact the division of and your property characterization. Equally as important, your date of separation determines when the marriage ended and thus the long duration of the marriage for purposes of awarding permanent alimony. The duration of your marriage is a key factor for the court to make an award of long-term spousal support.
If you are close to a duration of marriage near that ten year period for you marriage, correctly ascertaining your separation date may have a huge impact on the court’s jurisdiction over spousal support in addition to the duration of the award.