Determining the date of separation in California is an important factor in California divorce and legal separation cases. The legal date of separation is used to decide the potential duration of spousal support and the date each spouse’s separate property started to accrue post-marriage. The date of separation is specifically identified in the initiating petition. If you need help filing a petition for your California divorce or legal separation case, contact A People’s Choice for help. Read on to learn more about how to determine the California date of separation in divorce, legal separation or annulment proceedings.
Date of Separation vs Date of Legal Separation
The “date of separation” is different from obtaining a Judgment of legal separation. The California date of separation is a date of reference that affects decisions surrounding marital issues about spousal support and division of community property. It also defines when property or debt is considered separate property.
A “legal separation” is a court process similar to a divorce. In a legal separation the parties will divide property and debt as well as settle other issues such as spousal support, child support, custody and visitation. The “date of separation” will play an important role in settling issues surrounding the legal separation (or divorce) process, but it is not the same as a court order of legal separation.
Significance of California Date of Separation
In California, property acquired during marriage is presumed to be community property while property acquired post date of separation is separate property.
Determining the date of separation is not always easy. It is not uncommon for spouses to disagree about the date of separation. In the past, two different tests have been used to determine the date of separation: an objective test and a subjective test.
Objective Date of Separation Test
Under the objective date of separation test, the court will determine the California date of separation based upon when the couple started to live apart from each other. This occurs when one spouse leaves the primary family residence. If spouses occupy the same dwelling, there would have to be significant evidence provided that demonstrates unambiguous, objectively certain conduct that demonstrates a physical separation under the same roof.
Subjective Date of Separation Test
Under the subjective date of separation test, the court will look at each spouse’s intent to separate in hopes of ending his/her marriage. The court will also look at each spouse’s conduct towards one another to decide when the marriage ended and what date will be used as the date of separation.
Once the court determines the date of separation, this date will be used going forward in the divorce process for the purpose of property division and spousal support.
Recent Law Change Establishing California Date of Separation
A couple divorcing or separating in California must physically live apart to claim separate property — including income.
In July 2015, the state Supreme Court provided guidance to help couples determine the California date of separation in family law matters. The court’s unanimous ruling clarified what it means for a couple to separate. The court ruled that the divorcing couple must live in different homes to qualify as legally separated and keep some of their income from their spouse during any court proceeding. A couple who continues to live in the same home will not qualify as separated for purposes of dividing assets.
Separate Property and Date of Separation
As mentioned above, determining the date of separation in California is important because it affects each spouse’s right to post-marriage separate property. Community property is divided 50/50 in a divorce. On the other hand, separate property is awarded 100% to the party who owns/earns it.
Spousal support is also impacted by the date of separation. The date of separation determines the parties’ duration of marriage. The duration of marriage is a key element applied in determining long term spousal support.
Contact A People’s Choice for more information on how to determine the date of separation in your California divorce case. Doing so can help you protect your separate property interest during your divorce.