22 Sep Divorce and the Date of Separation in California
When a couple who are married go through the motions of divorce it may be mutually acceptable and relatively harmonious or acrimonious. The usual reasons why a divorce becomes acrimonious is because of disputes over how property is divided up, how alimony or child support is determined, who has child custody and what visitation rights are granted.
It is disputes over some or all of these matters that might lead to one or both partners seeking the advice and legal help of an experienced divorce attorney.
One of the many factors in sorting out disputes over money in a divorce is what is termed in California the “date of separation”. The date of separation is the date on which for all practical purpose the couple had decided that they no longer wished to continue with their marriage.
As with many aspects of divorce, the date of separation may be agreed by the two partners who are going through divorce or there may be a dispute over the date. In the latter case, it may be left to the Family Court to make a final decision about the date of separation. One or both partners may decide that they need legal help to determine the validity of what they claim to be the date of separation.
Why is there so much fuss about a simple date?
Money makes the world go round and disputes over money are the prime reason why there is such an importance attached to the legal date of separation.
The prime reasons why the date of separation affects financial affairs in a divorce are:
- determining the size of community assets;
- determining the size and distribution of debt;
- determining how long a marriage has lasted for alimony and child support purposes;
Community property or assets are considered all the assets and or property jointly owned by the couple during the course of the marriage. It is generally considered to be anything of value that has been acquired by the couple after the marriage commences and before it ceases. This is where the date of separation becomes important because if one of the two people earns or acquires money or property after this date, it will no longer be considered jointly owned and will fall to the person who acquired it as “separate property or assets.” The latter also includes anything of monetary value that one r the other partner acquired before the marriage began or that they acquired through inheritance or as a personal gift or bequest at any time.
Note that community property and assets are normally divided up 50/50 after divorce, so again the date of separation is important.
The debt incurred by the couple will be effectively separated after the date of separation. More importantly, any debt incurred by one or the other partner which is personal after the date of separation, must remain that person’s sole obligation to repay.
Support payments, such as spousal support or child support may depend on the length of the marriage. Any marriage which is 10 years or more in duration is regarded as one of long duration. This will mean higher payments for spousal support as well as child support. Despite the 10 year figure, the Family Court may still make a determination that a lesser number of years still qualifies as a marriage of long duration for spousal support purposes or vice versa.
Determining the date of separation
This is the most difficult part of the decisions which have to be made by the Court, although it can be made easier if the couple agree on a date. It is generally regarded as the date that the couple has decided that they do not wish to stay together as man and wife. It is not necessarily the date at which the couple starts living apart, although this might be a useful guide in determining the date. There may be still circumstances where a couple is still living under the same roof for practical purposes but are no longer living together as “man and wife”. Disputes over the date may lead to litigation by either or both partners.
If you and your partner cannot agree on the date of separation, then it may be best to get the advice of one of our sympathetic and knowledgeable family law attorneys at the Law Offices of Damian Nolan in Long Beach, California. Ring the office for an appointment on 562-634-1115.