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Date of Separation – Why It’s Important to Know (and Agree On)

In family law, the date of separation is very important in determining several contentious issues. If you are considering filing a divorce in California, it will save you a lot of time and money to decide this important date early.

Essentially, the date of separation marks the termination of a relationship. When determining the duration of a relationship as well as property matters, the date must be agreed upon.

During the divorce case, the court will use the decided date to rule on what qualifies as private and community property. Community property is all that both parties have acquired during the marriage irrespective of the location. These assets are shared in half by both parties unless stated otherwise by the law. On the other hand, private property is considered to be all assets that each of the separated spouses has acquired after the separation. This is fully owned by the individual spouse.

What the court considers in determining the date of separation.

When spouses cannot agree on the date of separation, the court will look at both parties and try to establish the date of separation. Normally, their living situations will be examined and the court looks at:

  • Whether they continued to live in the same house
  • Whether they identified themselves in the public as separated or married
  • Whether they pooled their resources after the claimed date
  • Whether financial support continued after the contented date
  • Whether intimacy ceased or continued
  • How they made income tax filings
  • Whether they dated other partners
  • How consistent in conduct the spouses are in light of what is considered a final separation

When the issue is under litigation, the facts presented to the court will determine the ruling. If the court finds inconsistencies in behavioral patterns such as having dinner together, engaging in joint activities like vacations and other events, it could mean the spouses are inconsistent with a separated couple. In such cases, the court will use the most appropriate indicator in determining the date of separation.

The California divorce law is founded on common law but it is interpreted by case law according to the California Supreme Court. Therefore, cases may be determined according to leading cases that have been handled in the past.

When there are several Dates of Separation: What do you do?

It is not uncommon to come across spouses who present two different dates of separation. This can lead to a long and expensive legal battle. Normally, it rises from instances where couples separate for the first time and then reconcile. If they ever separate again and seek a divorce, it’s likely that the dates will be contented.

Typically, there’s one acceptable date which is considered to be the latest subjective or objective intent of separation.

The unnecessary conflict and expensive legal litigation can be averted if you can get informed on the issue. This can be done by clearly understanding what qualifies as a date of separation and then taking immediate action that establishes the date. However, you must realize that after acting to establish the date, you must not take any action or behave in a manner inconsistent with separation. If that happens, the established date will be compromised and you will be back to square one.

A separation is characterized by a subjective intent followed by a verbal confirmation of intent of separation. Then, these are followed by a behavior consistent with spouses that are separated.

There are several events that can characterize a date of separation:

  • Using separate bedrooms
  • Informing the children about the possibility of a divorce
  • Not having meals together
  • Consulting an attorney about divorce
  • Living in separate residences
  • Not participating in social and public events together
  • Discontinuation of intimacy
  • Confessing publicly of the separation

Why the Date of Separation is so important.

Sometimes, the separation date is a contributing factor towards determining the legal duration of the marriage. When this is the case, you should consider getting a competent attorney to help with the case. When long-term and short-term marriage is a determinant of spouse support, the monetary value could be thousands of dollars for long-term marriage.

Therefore, care must be taken when handling the case and especially the date of separation. In California, the law accepts a long-term marriage to be above ten years while short-term is considered to be less than ten years. To illustrate the difference in support, a long-term spouse may be entitled to a lifetime support. On the other hand, short-term spouses are granted support for half of the period the marriage lasted.

This is where the date becomes critical because a few months or days can qualify or disqualify a lifetime support.

The date of separation can be the key to the determination of the following matters:

  • Characterization of assets

In a typical situation, the separation date marks the moment when the accumulation of community property stops. Once the spouses have separated, all their earnings from that moment on as well as all assets acquired with it are treated as a separate property for each party.

The Family Code Section 771 clearly states that

“The earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, while living separate and apart from the other spouse, are the separate property of the spouse.”

  • The length of support offered to a spouse

It is critical in determining the length of the marriage and, as a consequence, the offered spousal support. It gives the parties a snapshot of the period of time they have been actively married and the obligations for support. Normally, marriages that qualify to be considered long-term will benefit more from spousal support deals. In California, the law recognizes spouses who have been together for more than ten years as a long-term marriage. As such, the spousal support may be given for a lifetime with few exceptions. For instance, the law may require the support be provided until the spouse remarries.

On the other hand, a marriage that lasts for ten years is considered short-term. In this case, the spousal support is required for half the time that the marriage has existed.

  • Dates for valuation on assets

In California Family Law, the date of separation is important in the determination of the reimbursement claims with regard to fixing value to the properties. For example, the law provides that the community property has some interest in the rising value of a residence owned or held by one spouse when the mortgage is paid. This principle is commonly known as the Moore-Madsen approach to equitable reimbursements. Should the value of the asset significantly rise, the holding spouse may theoretically argue that the appreciation is their sole property. At such instances, the date of separation becomes important to valuing the property as well as the loan amounts.

  • Inclusion in debt liability

From the date of separation, the spouses are not liable for each other’s debts. In this case, the community property is held liable for any debt that either of the spouses has incurred during the marriage period. The term “during the marriage” excludes the period of time when the spouses are living separately awaiting the ruling of dissolution from a court of law.

  • Allocation or exclusion to stock options

When businesses are involved in the case, the date of separation is important. It can be a corporation, a sole proprietorship, or a mom and pop shop. It helps in determining the fate of a spouse who is technically the business or controls the business and continually benefits from income provided by the business after the separation, whether the business appreciates or depreciates through normal market forces or the controlling spouse intentionally sabotages the business. Usually, a spouse can sabotage its operations in a bid to lower the amount that the other spouse can demand from them. Either way, the date serves as a reference point in determining what each spouse is entitled to.

  • Determination of liability to taxation

 

  • Allocation or denial of a retirement plan

The date is also very important when there is litigation on pensions. Whether the pensions are contributive plans or definitive plans, whatever amounts will accrue to them as a factor of their contributions towards the plans is considered their property.

  • Fiduciary law interpretations

Separation is critical during the expansion and interpretation of fiduciary duties. The spouses are required to confide in each other and disclose matters regarding money and property. However, after separation, the duty to confidentiality ceases and spouses can no longer consider their partner as trusted. But fiduciary duties and obligations survive the separation with regard to assets that existed prior to the separation. Normally, this will hold until the properties are divided by the court.

For example, in the famous Rossi case, a wife had won a lottery and immediately filed a divorce the next day. She claimed that she had already separated with the husband. In her paperwork, she never mentioned the lottery, nor did she disclose it to her husband. Since the husband had no idea about the lottery winning, he didn’t dispute the date or the divorce until after the proceedings.

Later, he learned about the lottery from a letter intended for his spouse. He made contact with the lottery board and sought legal action to set aside the divorce and for damages from the wife’s breach of fiduciary duty. The husband won the case with the court ordering the wife to pay all the money won to the husband, which included:

  • Legal charges for utilizing community assets
  • Characterization of certain income into community or separate
  • Allocation of commissions, incomes, bonuses and deferred compensation (of the lottery win)
  • Misappropriations and reimbursements for expenditures (after the fact)

My Final Recommendations

You should know your legal date of separation. As you can see, it’s quite important, but not always simple or easy to figure out. If you are not coming to consensus with your partner about the date of separation, we can help you figure that out. Call us today to find out how we can help you through this process.

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