What Determines the Date of Separation in California Divorce?

If you are considering filing for divorce in California, or in the process of doing so, you will have to decide the date of separation between you and your spouse. Why is it important to decide the date you and your spouse separated? To start, the date of separation establishes the intent of a spouse to no longer continue the marriage. The date of separation establishes a “break” in the marital relationship. The court uses the date of separation to determine each spouse’s community and separate property interests.

California Family Code section 760 defines community property as follows:

Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.

California Family Code section 770 defines separate property as follows:

Separate property of a married person includes all of the following:

   (1) All property owned by the person before marriage.    (2) All property acquired by the person after marriage by gift, bequest, devise, or descent.    (3) The rents, issues, and profits of the property described in this section.    (b) A married person may, without the consent of the person’s spouse, convey the person’s  separate property.

The community property rights of each spouse stops accruing once the parties have separated. The community property owned by both parties up to the date of separation in California divorce will be divided 50/50 (unless agreed upon otherwise). Separate property will be awarded 100% to the spouse in possession.

How the Court Determines the Date of Separation?

Determining the date of separation in California divorce may be tricky if it is not clear. It is not uncommon for spouses to litigate over the issue. The court will use two different tests to decide the date of separation if it is litigated between the parties:

Objective Test: When using the objective test, the court will decide when the couple started living apart with the intent of not reconciling their marital relationship. The court will look for evidence that shows whether a spouse displayed unambiguous objectively ascertainable conduct that he/she wished to no longer stay married.

Subjective Test: Though physical separation may suggest that a couple no longer intends to stay married, the court will consider the subjective intent of each spouse to seek to end the marital relationship. The court will look at each spouse’s conduct to decide when the “marriage ended.”

The court will look at findings under both tests to decide the legal date of separation in California divorce.

California divorce law is based on common law, and interpreted by case law through decisions of the  California Supreme Court, California Courts of Appeal, and Appellate Divisions of the California Superior Courts. A leading case that addresses the date of separation in California divorce is In Re Marriage of Manfer (2006) 144 Cal. App. 4th  925. In this case, both parties privately acknowledged that their marriage was over. The couple did not live together and held separate finances during a 9 month period. However, the couple resided with each other during the holidays and maintained the norm of “marriage” during this time. Upon the filing of marital dissolution, there was a high sum of money at issue all centering on the date of separation. The wife, who earned over a million dollars salary claimed the date of separation occurred prior to the 9 month period. The husband claimed that the date of separation occurred after the 9 month period which would classify the wife’s salary as community property. The trial court ruled for the husband’s claim of separation. Read more about a recent decision in California that changes the way couples determine their date of separation in a more recent blog post.

How Does the Date of Separation in California Impact Spousal Support?

The date of separation in California divorce helps figure the parties duration of marriage. Determining the duration of marriage is a key factor in deciding the award of long-term spousal support.

California Family Code section 4336 states the following regarding a long term spousal support duration:

Except on written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal separation of the parties where the marriage is of long duration. For the purpose of retaining jurisdiction, there is a presumption affecting the burden of producing evidence that a marriage of 10 years or more, from the date of marriage to the date of separation, is a marriage of long duration. However, the court may consider periods of separation during the marriage in determining whether the marriage is in fact of long duration. Nothing in this subdivision precludes a court from determining that a marriage of less than 10 years is a marriage of long duration.

Hence, accurately determining the date of separation in California divorce can have a huge impact on the court’s jurisdiction over spousal support in addition to the duration of the award.

If you are going through divorce, or thinking about divorcing your spouse, make sure you clearly identify the date of separation. If your spouse and you reconcile after the official date is established, you will have to set a new date of separation. Contact A People’s Choice for more information about filing for divorce in California.

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