THE DATE OF SEPARATION IN A CALIFORNIA DIVORCE: WHY IT MATTERS
If you are beginning to think about divorce, you are probably discovering that there are a surprising number of legal and financial issues to understand — often at a time when you are least equipped emotionally to deal with them.
One of those issues is the date of separation.
At first glance, this may seem like it should be simple. Was it the day one of you moved out? The day you decided the marriage was over? The day you told your spouse? Or the day someone filed for divorce?
In California, the answer is not always obvious. And the date can matter more than you might expect.
The date of separation can affect which income and assets are considered community property, responsibility for certain debts, and the length of the marriage for purposes of spousal support. If you and your spouse disagree about the date, the financial consequences can sometimes be significant.
Here is what you should know.
WHAT DOES "DATE OF SEPARATION" MEAN IN CALIFORNIA?
California Family Code §70 defines the date of separation as the date when a "complete and final break in the marital relationship has occurred."
In determining when that happened, California law looks at two things:
Whether one spouse expressed to the other spouse an intent to end the marriage; and
Whether that spouse's actions were consistent with that intent.
The court can consider all relevant evidence in deciding when the separation occurred.
In practical terms, this means that simply thinking to yourself, "This marriage is over," generally isn't enough. There needs to be some communication of that intention to your spouse, along with behavior that is consistent with the marriage ending.
On the other hand, you do not necessarily have to move out of your home to be legally separated.
That distinction can be particularly important for families with children. Many separating parents continue living under the same roof for some period of time because they are trying to maintain stability for their children, cannot yet afford two households, or simply need time to figure out what comes next. Continuing to share a home does not, by itself, mean that you do not have a date of separation.
WHY DOES THE DATE OF SEPARATION MATTER?
It Can Affect What Is Community Property
California is a community property state. Generally, earnings and assets acquired during the marriage are community property, subject to important exceptions.
The date of separation creates an important dividing line. Under California Family Code §771, a spouse's earnings and property accumulations after the date of separation are generally that spouse's separate property.
Imagine, for example, that one spouse believes the couple separated on January 1 and the other believes they did not separate until July 1. During those six months, one spouse receives a substantial bonus, earns significant income, or makes large contributions to a retirement account.
Suddenly, a disagreement about a date on the calendar can become a disagreement involving a substantial amount of money.
This can be particularly important when one or both spouses receive bonuses, commissions, stock compensation or other forms of compensation that do not arrive in a simple monthly paycheck.
It Can Affect Responsibility for Debt
The date of separation can also matter when determining responsibility for debts.
Generally, debts incurred after separation are treated differently from debts incurred during the marriage. California Family Code §2622 generally assigns debts incurred after separation but before the divorce judgment to the spouse who incurred them, although there are exceptions.
If you are newly separated, this is one reason it is important to begin paying attention to your finances even if your spouse has traditionally handled most of the family's financial matters.
You don't need to understand everything immediately. But you do want to know what accounts exist, what debts you have, and what is happening financially as you move through the separation.
WHAT ABOUT THE "10-YEAR RULE"?
If your marriage is approaching ten years, the date of separation may take on additional significance.
You may have heard that reaching ten years of marriage means someone automatically receives lifetime spousal support. That is not California law.
California Family Code §4336 provides that a marriage lasting ten years or more, measured from the date of marriage to the date of separation, is presumed to be a marriage of "long duration." That designation can affect how the court handles continuing jurisdiction over spousal support.
But ten years is not a magic number that guarantees support, determines how much support will be paid, or means that support will continue forever.
It is also possible for a court to find that a marriage of less than ten years is a marriage of long duration based upon the circumstances.
Still, if you are separating close to your tenth anniversary, this is something you should discuss with a California family law attorney rather than relying on what you may have heard from friends or read online.
HOW DO YOU PROVE WHEN YOU SEPARATED?
For many couples, there is no disagreement.
Both spouses may remember the conversation when they acknowledged that the marriage was over. One spouse may have moved out shortly afterward, and their lives clearly began moving in separate directions.
Other marriages end much more gradually.
Perhaps you had been unhappy for years. Maybe you slept in separate bedrooms. Maybe you repeatedly discussed divorce but continued trying to make the marriage work. Or perhaps one spouse said the marriage was over and then the two of you tried counseling or reconciliation.
Those situations can make the date much less clear.
If the date is disputed, a court may look at evidence such as:
Emails and text messages between the spouses;
Conversations in which an intention to end the marriage was communicated;
The date one spouse moved out;
Changes to bank accounts or financial arrangements;
A new lease or residence;
Communications with family or friends;
Changes in how the spouses presented themselves socially;
Whether the spouses continued functioning as a married couple; and
Evidence of attempted reconciliation.
No single fact necessarily determines the answer. The court looks at the overall circumstances to determine when there was a complete and final break in the marriage.
CAN YOU BE SEPARATED AND STILL LIVE TOGETHER?
Yes.
And for many families, continuing to live together for a period of time is simply practical.
Housing in California is expensive. Parents may be concerned about disrupting their children's lives. One spouse may need time to find another home.
Sometimes neither spouse is quite sure how the finances are going to work yet.
California law does not require one spouse to immediately move out in order for the couple to have a date of separation.
At the same time, continuing to live together can make the facts less clear. If you believe you have separated but are remaining in the family home, it is particularly important to get legal advice about your individual circumstances.
WHAT IF YOU TRY TO RECONCILE?
This is another area where real life is often messier than the law sounds on paper.
People sometimes decide to divorce and then reconsider. They may try marriage counseling. They may spend time together again. They may sincerely hope the marriage can be repaired.
An attempted reconciliation does not necessarily answer the legal question of when the separation occurred, but it can become relevant evidence in determining when there was actually a complete and final break in the marital relationship.
If this describes your situation, don't assume you should already know the answer. Talk with your attorney about what actually happened and let your attorney help you understand the legal significance.
A FEW PRACTICAL STEPS
The beginning of a separation can feel like an avalanche of decisions. You do not have to solve every issue at once.
But there are a few things worth doing early.
Keep important emails and text messages. Begin gathering copies of financial statements and tax returns. Know what bank, credit card, investment and retirement accounts exist. Make note of significant bonuses, stock awards, commissions or other income that may be received around the time of separation.
And if you believe the marriage has ended, be thoughtful about communicating that clearly.
Most importantly, don't make major financial or legal decisions based solely on something you read online — including this article. The facts of every marriage are different, and seemingly small details can change the legal analysis.
TAKEAWAYS
The date of separation may sound like a technical legal issue, but it can have very real consequences in a California divorce.
If you are just beginning this process, remember:
The date of separation is not necessarily the date someone moves out or files for divorce.
California looks at both the communication of an intent to end the marriage and conduct consistent with that intent.
You can potentially be separated while continuing to live in the same home.
The date can affect property, income, debts and spousal support issues.
If your marriage is approaching ten years, the date may be particularly important.
If you aren't sure what your date of separation is, that is a question to discuss with your family law attorney.
Divorce requires you to learn an unfamiliar legal and financial language while also dealing with enormous changes in your family and your everyday life. It is understandable if you don't know all of the rules when you begin.
You don't need to become an expert in California divorce law. You do need good information, good professional advice, and enough understanding of the process to ask the right questions and make thoughtful decisions for yourself and your family.
This article provides general information about California divorce and is not intended as legal advice. Every family's circumstances are different. Please consult a qualified California family law attorney regarding your individual situation.
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