In California, couples need to mark the date of their separation. The date is necessary to determine property and spousal support rights and interests.
Property acquired after the date of separation is deemed to be separate to each party; property acquired before the date of separation is community property.
The difficulty is, many couples do not think to record their exact date of separation. Such a life-altering change can also be difficult to tie to a single day.
For example, a couple might come to the conclusion that their eight-year marriage is over in 2011, but continue to cohabit and share expenses and parenting duties until 2014. Was their marriage eight or 11 years long?
In many cases, former spouses struggle to agree on a named separation date. If that happens, courts use two different tests to determine a date – a subjective test and an objective test.
The subjective test holds that physical separation in not enough to indicate that a couple is separated. Some couples may live apart for periods of time with no intention of filing for divorce. The court examines “intention” by looking at a couple’s conduct towards one other. This test, combined with the objective test, helps the court set a separation date.
Using the objective test, the courts figure out when a couple started living apart. This generally happens when one of the spouses moves out. However, in today’s economic climate, many former members of couples continue to share a house because they cannot maintain two residences. In such situations, U.S. courts account for ways to ensure and prove physical separation. That proof needs to be offered to the court. One spouse, for example, might have moved to a basement suite with external access to the main home on the couple’s date of separation.
Once the court has arrived at a date, it will be used for the rest of the divorce process. The date of separation for a couple in California may be determined by the court, provided that the couple has not written it down or retained any proof of actual physical separation.
Today’s families often find themselves in difficult financial circumstances. They remain together, yet apart, for the sake of their children. While not actually a bar to obtaining a divorce, there may be issues determining a date of separation that one individual regards as unfair.
When there is doubt as to the date of separation or how to proceed with a divorce, seek the counsel of an experienced divorce lawyer.
Gerald A. Maggio is an experienced Orange County divorce and family law lawyer and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.