What is a Date of Separation and Why is it Important?

When filing for divorce in California, spouses must determine their date of separation. California courts use this information to establish a concrete date of one or both spouses’ intent to discontinue the marriage. In other words, the date of separation establishes the official “break” in the marital relationship.

Determining the Date of Separation

Unfortunately, pinpointing the exact date of intent to separate is tricky. As a result, spouses commonly litigate over the date of separation during divorce proceedings. Therefore, the court must utilize two complimentary tests to establish a date of separation for divorcing couples.

First, the objective test typically identifies the date a couple started living apart with the intent of not reconciling their marital relationship. For this test, the court will look for evidence of a spouse displaying unambiguous objectively ascertainable conduct displaying intent to discontinue the marriage. However, note that even spouses still occupying the same house can nevertheless practice physical separation. Therefore, the court will take this into consideration as well.

Second, the court uses the subjective test to support their objective findings. With a subjective test, the court considers the subjective intent of each spouse to end the marital relationship. More specifically, the court will consider each spouse’s conduct to decide when the marriage “ended”.

Implications of the Date of Separation

The court does not identify a date of separation simply to pinpoint the end of a relationship. Instead, they utilize this information to make important decisions regarding the division of the marital estate as well as spousal support.

Division of Property

California is a community property state. This means that all property acquired during a marriage is split 50/50 upon divorce. On the other hand, California Family Code Section 770 defines separate property as that owned prior to the marriage or acquired during marriage by “gift, bequest, devise, or descent”.

Once a couple separates, the community property rights of each spouse stop accruing. In other words, starting on the date of separation, all property acquired by either party becomes separate property. As a result, the court will evenly divide each party’s community property owned ONLY up to the date of separation unless otherwise agreed upon. Then, each spouse will be awarded 100% of their respective separate property based on the date of marriage as well as the date of separation.

Spousal Support

In addition to determining property interests, the date of separation helps calculate the parties’ duration of marriage. The duration of marriage plays a key factor in determining the award of long-term spousal support. For example, 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.

Put simply, this law states that the court will retain jurisdiction over spousal support unless otherwise agreed upon for marriages of 10 years or longer. This power is important as many spouses revisit spousal support with modification requests due to changed circumstances. Hence, accurately determining the date of separation in California divorce can have a huge impact on spousal support. Plus, it can even affect the duration of the award.

A People’s Choice Can Help

If you are going through or considering divorce, make sure you clearly identify your 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 one.

We know legal proceedings require a lot of work. If you need help with your DIY divorce, contact A People’s Choice to learn how we can help. We provide low-cost, attorney-free assistance with completing and filing your legal documents for California divorce. Call us at 1-800-747-2780 to start today.