California uses the date of separation as the essential date for determining property interests for the purpose of dividing property and debt during divorce. 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.
In California, when considering dividing property and debt during divorce, the assets owned by the spouses can be community or separate property for the purpose of the divorce. It is important to set aside what assets (or liabilities) are separate assets for each spouse. The divorce court is required to set apart each spouse’s separate property but shall divide the community property and liabilities between the spouses.
If the date of separation is unclear or the parties disagree, the court will look at two different tests to determine the separation date: an objective test and a subjective test.
As the California Courts put it, “Our conclusion does not necessarily rule out the possibility of some spouses living apart physically while still occupying the same dwelling. In such cases, the evidence would need to demonstrate unambiguous, objectively ascertainable conduct amounting to a physical separation under the same roof.”
The combination of findings from each of these tests will be used by the court to establish the date of separation. This date will then be used going forward throughout the divorce process for the purpose of dividing property and debt during divorce in California.
Married couples often have a mix of separate property, community property and property that has become a mix of both. The following information will provide some understanding of how California law and the court may look at the different types of property and how they will address dividing property and debt during divorce or legal separation.
As you can see, in contested divorce proceedings, the date of separation can be very important. The classification of property also is instrumental in deciding how property and debt is divided. Understanding these issues can be very overwhelming. They are key factors in marriages of high profile couples who have a long term marriage and millions of dollars in assets. It is important to understand that most couples going through divorce do not have to be burdened with the technical aspects of this part of California law. Most couples agree on their date of separation and are usually able to work out a division of property that everyone is happy with. This agreement is memoralized in a Marital Settlement Agreement which both parties sign.
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