The word “separation” can have a variety of different but related meanings in divorce law, but specifying what the “date of separation” is for two spouses entering into the divorce process can have a profound impact on issues such as division of property and spousal support. Whereas people might use the phrase “separation” to refer to two married people living apart in an attempt to decide whether or not to remain married, that is not what the date of separation refers to in California. Also, some states will issue a “legal separation” which is similar to a divorce, but California does not offer legal separation. Instead the date of separation in California refers to the date that the couple decided to no longer be married to one another.
Defining the Date of Separation in California
For many years, the California law was clear that the date of separation referred to the date on which the spouses understood that they would no longer be married to one another. This did not require that both spouses agree to the divorce, as it is a hallmark of California no-fault divorce law that a divorce can be granted when only one spouse desires the divorce, and no fault need be shown in obtaining the divorce.
A 2015 California Supreme Court case - In re Marriage of Davis - muddied the waters on the date of separation by requiring that the spouses live separately, but the California legislature acted quickly to legislatively overturn that decision by revising the family law code (effective Jan. 1, 2017) to specify that the date of separation does not require living apart but instead will be “the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following: (1) The spouse has expressed to the other spouse his or her intent to end the marriage; (and) (2) The conduct of the spouse is consistent with his or her intent to end the marriage.”
Why the Date of Separation Matters in Your Divorce
The date of separation matters for several reasons. One major issue is with regard to the division of property. Any property earned and/or acquired during the marriage will be considered community property, subject to a 50/50 split between the spouses regardless of whose efforts earned/acquired the property. But any property earned or acquired after the date of separation will be considered separate property belonging only to the spouse who obtained the property.
Thus, if a husband tells his wife that he unequivocally wants to divorce her on December 7, and takes some action consistent with that statement (i.e. calling a divorce attorney), and the wife goes out and buys a winning lottery ticket the next day, he will have no claim on her lottery winnings. That said, if the wife receives an end-of-the-year bonus based on work she had done between January and December, he would have a claim on half of the bonus attributable to the time between January and December 7.
The date of separation also matters for other issues such as spousal support which will take into account the duration of the marriage. Any decisions which incorporate the duration of the marriage will only consider the time between the date of marriage and the date of separation, as opposed to extending to the date a divorce is handed down (which, by definition, would not be known at the time the court is considering these issues).
Get Answers to Your Legal Questions in a California Divorce
By working with an experienced family law attorney, you can take the steps necessary to protect your rights and finances in a California divorce. To schedule a consultation regarding your California divorce, contact one of the family law attorneys at Kearney Baker today at 626-768-2945.