Essentially, the date of separation is the date when at least one party declares the intention to end the marriage and his or her actions clearly indicate that intention.
The established test for the date of separation is when 1) one spouse does not intend to continue the marriage, and 2) the actions of that spouse are consistent with that intention. The California Family Code describes this as “living separate and apart.” In other words, the couple no longer lives and behaves as a couple. They keep their finances separate; they have separate time with the children; they live in separate places.
For example, if a wife files a petition for dissolution of the marriage but continues to live with her husband and share finances, the date of separation has not yet occurred. She has fulfilled the first part of the test by showing an intention to no longer be married to her husband. However, she has not fulfilled the second part of the test because her actions are not consistent with the intention to no longer be married.
Why is the “date of separation” important?
The “date of separation” is a key legal concept when dividing property during a legal separation or divorce.It is the date that as a matter of law the couple is separated and no longer a “community.” Beginning with the date of separation, income each spouse earns remains his or her own separate property. Debt incurred after the date of separation is separate property as well.
The date of separation can matter significantly when trying to determine whether property is community or separate (i.e., should it be divided because it’s owned by both parties or is it the sole property of one spouse). Couples can disagree on when the date of separation occurred—for example, where one spouse incurred some debt and thinks it should be shared by both spouses or where one spouse has earned a bonus at work and does not want to share it with her spouse.
The date of separation can also play a role in determining the length of the marriage. Length of marriage can be significant when determining a spousal support order.
Questions about divorce?
If you have questions about divorce, the attorneys at Shoreline Legal Group can help. We offer compassionate and affordable legal services in family law. Contact us to set up a consultation at 562-449-4665 or firstname.lastname@example.org. We are located in Los Alamitos, CA and serve clients in Southern California including Long Beach, Cerritos, Cypress, and Santa Ana.