If you and your spouse are considering or in the process of filing for divorce in California, you will have to determine your date of separation. This date is more important than many couples realize. In a California divorce, the date of separation establishes one spouse’s intent to discontinue the marriage. In other words, the date of separation establishes a “break” in the marital relationship.

Read on to learn more about the date of separation in California divorce and why it’s important.

How Does the Court Determine the Date of Separation?

Determining the date of separation in California divorce can be tricky. In fact, spouses commonly litigate over the issue.

To determine a litigated date of separation in California divorce, the court uses two different tests:

  1. Objective Test: The objective test helps the court decide when the couple started living apart with the intent of not reconciling their marital relationship. Furthermore, the court will look for evidence that a spouse displayed unambiguous objectively ascertainable conduct that they wished to discontinue the marriage.
  2. Subjective Test: With a subjective test, the court considers 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”.

Using Date of Separation to Determine Property Interests

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.

Additionally, 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 stop accruing once the parties separate. At this point, each party’s community property owned up to the date of separation will be divided 50/50, unless otherwise agreed upon. However, each spouse will be awarded 100% of their respective separate property.

Using the Date of Separation to Determine Spousal Support

In addition to determining property interests, the date of separation in California divorce helps calculate the parties’ duration of marriage. 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.

The History of the Date of Separation in California Divorce Law

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. For example, the couple lived apart and held separate finances during a nine month period. However, the couple resided together during the holidays and maintained the norm of “marriage” during this time.

Upon the couple filing for marital dissolution, they held a high sum of money at issue. The distribution of this money depended on the legal date of separation. Thus, the wife, who earned over a million dollars’ salary, claimed the date of separation occurred prior to the  nine month period. However, the husband claimed the date of separation occurred after the nine month period. This would classify the wife’s salary as community property. In this case, the trial court ruled for the husband’s claim of separation.

A People’s Choice Can Help

If you are going through or considering divorce, make sure you clearly identify the date of separation. Also, note that if you and your spouse 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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