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What’s So Important About the Date of Separation in a Divorce?

Dividing Community Property in California

How do California courts divide marital property in a divorce? California is a community property state. In a divorce, community property is equally divided between the spouses. So, what constitutes community property?

All property the parties acquire during their marriage is considered community property and is divisible upon divorce. California courts have consistently interpreted this to mean that property the parties obtain after their marriage date and before their date of separation will be equally divided between them during divorce proceedings. As a corollary, all property a party has acquired before marriage and after the date of separation is considered separate property and not subject to division upon divorce.

Some jurisdictions consider the date the petitioner files for divorce the end of the parties’ marriage. However, California courts recognize that a marriage effectively ends when at least one party has  a subjective intent to end the marriage and their actions objectively support that intent.

In many cases, the parties might stipulate as to the date of separation to simplify the litigation process. However, when the date of separation is in dispute, courts primarily look at the time when the parties:

  • Started lived in separate residences;
  • Stopped having sex;
  • Changed financial arrangements;
  • Changed how they held themselves out to others;
  • Changed their familial interactions.

Thus, even if a spouse moved out of the family home and the couple stopped having sex, the fact that they had a “farewell” fling risks pushing back the date of separation. If the parties resumed marital relations with the prospect of reconciliation in mind, courts are more likely to push back the date of separation.

As long as the parties are diligent about advancing divorce proceedings, the date of separation should not be a significant concern. However, in some cases—particularly those with high-value, interest-bearing assets—two competing claims that hold the date of separation even months or years apart can potentially cost thousands of dollars.

Spousal Support Determinations

The date of separation also plays a significant role when determining spousal support obligations. In California, the extent of a spousal support award depends on the length of the parties’ marriage. Under California law, a marriage lasting less than ten years is considered a short-term marriage; a marriage lasting ten years or more is considered a long-term marriage.

There is a legal presumption that California courts indefinitely retain jurisdiction for spousal support issues with regard to long-term marriages. As a result, courts have the authority to extend spousal support until one of the parties remarries or passes away.

Additionally, the amount of a spousal support award depends on the lifestyle to which the parties grew accustomed during the marriage. Courts have held that spousal support should allow a spouse to sustain the lifestyle the parties enjoyed at the time they separated. For example, if the couple attained a high middle-income lifestyle at the date of their separation, a spousal support award should allow the supported spouse to maintain as close to that middle-income lifestyle as possible. A sudden change in wealth or financial condition is possible between competing dates of separation.

Consult a Skilled Attorney from Bremer Whyte Brown & O’Meara

If you are going through a tough divorce, you stand to benefit from the professional legal services of an experienced attorney from Bremer Whyte Brown & O’Meara. Our legal team has years of experience assisting California residents with legal disputes related to divorce and other family law matters.

Call our office at (949) 229-8546 or visit us online to schedule a consultation exploring the extent of your legal rights and options in your case.