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The Importance of the Date of Separation

by Steve Fritsch on October 1, 2012

wristwatch In every California divorce or legal separation proceeding, the “date of separation” must be determined.  In many cases, there is no dispute as to the date of separation and the parties simply agree to a date.   However, in some cases it is a point of contention and can result in extensive litigation.  In cases where there is a dispute as to the date of separation, the court can bifurcate the issue which means there is a separate trial to determine the date of separation.

Why is the date of separation so important?

The quick answer is that it shows when the marital relationship ended.   This date is needed in dividing assets and debts and is relevant to the issue of spousal support.  Without a date of separation, resolution of those issues cannot occur.

The community property presumption states that any asset obtained during marriage and any debt incurred during marriage is presumed to be a community asset and debt.  Therefore, the date of separation plays a significant role in whether an asset or debt is separate property or community property.  In most cases, if an asset or debt is obtained after the date of separation it likely will be separate property.  This can have a significant financial impact on the parties.  For example, if one spouse received bonus money after the date of separation, the court could rule that the money is the sole and separate property of the spouse that received the bonus.  Also, credit card debt may be incurred close to the date of separation and when that date is determined will cause either one or both spouses to be liable for the debt.

The date of separation is also important regarding spousal support.  More specifically, in determining the length of marriage.  If the marriage is short term (under 10 years), spousal support is generally payable for one-half the length of marriage.  If the marriage is one of long duration (over 10 years) the court will not set a termination date.  Therefore, one can see the importance of the date of separation if one party says it is a nine year marriage and the other spouse says it is 10 years.  The financial impact is great.

How does the court decide what is the date of separation if the parties cannot agree?

The court will determine the date of separation is when either or both parties perceive their relationship is over.  They will look at the parties’ words and actions together which must be simultaneous.  In re Marriage of Harden (1995) 38 CA4th 448.  The Harden rule did away with the outsiders view (In re Marriage of Baragry (1977)) 73 CA3d 444) or how an outsider would perceive the marriage.  In other words, the courts will look at all the facts as an aggregate to determine the date of separation.  The courts will look at factors such as:  has a party moved out, are they having marital relations, do they still meet and have dinner or travel together, do they file joint tax returns, do they have joint bank accounts or do they give each other gifts.  However, not one factor is determinative.  For instance, a spouse that has moved out and is dating a third party may still be considered married if other factors are present that show that the marital relationship exists.

As you can see, the date of separation is an important issue in divorce and legal separation.  In some instances the financial impact of the date of separation can be great.  For this reason it is important to address the issue and ensure that it is accurate; otherwise, it could be very costly.

Disclaimer:  The information on this page is for informational use only and is not intended to be legal advice and should not be relied on for legal advice.  If you have any questions you should seek the advice of an attorney.  The outcome of any case depends on the specific facts and circumstances of the particular case.

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