Determining the date of separation during a divorce case can be one of the biggest areas of contention and confusion. During marriage, couples often revisit the same well-worn subject matter in arguments. “Oh that again?” They’re triggered back into long standing patterns of dysfunctional behavior or non-productive communication.
After divorce, when emotions have settled, it’s not unusual to hear someone recall the exact moment they knew that their marriage was ‘really’ over. But how? When? The real answer is that you just know when. The routine gets broken. The pattern shifts. There is something different in the tone or a rogue action occurs. It is changed and over.
But in the heat of divorce proceedings, with large financial considerations at stake, this “acknowledgement of when the date of separation occurred” can cause a huge difference of opinion.
What is the Date of Separation?
The date of separation occurs when one of the parties physically separates from the other and shows intent to end the marriage.
Why is the Date of Separation Important?
The date of separation is important because it determines the duration of the marriage. With few exceptions, all assets and income from the “date of marriage” to the “date of separation” is community property in the state of California. Anything acquired after the date of separation is separate property. California uses the date of separation as the essential date for determining property interests, as well as critical issues such as spousal support.
The date of separation can affect retirement contributions, big bonuses, appreciation in investment accounts and income from contracts that are negotiated prior to that date. It affects the character of both income and contributions to community assets, as well as liability for debts.
What About Liability for Debts?
You’re responsible for all community debts incurred by both you and your spouse between the dates of marriage and separation. Without careful investigation, you could be assuming community debt that was actually incurred by your spouse during an affair.
Neither you or your share of the community estate is liable for your spouse’s debt after separation, except those that are incurred for common necessities of life, such as food for your spouse or children.
How Do I Determine the Date of Separation?
If you and your spouse can’t agree on a date of separation, it might be decided by a court of law. The court can use two kinds of tests:
- an objective test
- a subjective test
Using the objective test, it would be easy to determine date of separation: if someone just shouted, “That’s it. I’m getting a divorce,” and he or she then moved out — lock, stock and barrel — and never returned.
However, this is rarely the case. Physical separation can also occur within the same household, under certain conditions. With the subjective test, the court looks at your conduct toward each other to see when the intent to end the marriage occurred. If one party moves out, but returns home for dinner, laundry and “dessert,” the case might be made that it’s not an intention of divorce, but just a break while working through issues.
Determining the date of separation has many components. If you are feeling overwhelmed or unsure how to organize the financial portion, contact me today. I can help you establish and document the financial timeline necessary to support your date of separation.