In many divorce actions in the state of California, the date of separation is frequently a divisive issue. Why is this?
The reason this happens is that the actual duration of marriage typically has a substantial impact on two other crucial issues that happen in a divorce. They are spousal support and community property.
When does a separation happen?
Separation happens when either person has no intention of resuming the marriage, and their actions reveal the finality of a break in their marital partnership. The issues in the marital relationship have to be so severe that there remains no practical chance of resolution, correction, or elimination of those issues. In short, the marriage is totally and finally broken down.
Given that, it's not always a simple matter of proving the provided definition. That means that quite a few cases go through bifurcation in order to establish a specific date of separation in advance of handling many other divorce matters. Basically, the court looks to the specific conduct in determining when the 'separation' finally took place. I've personally litigated cases where one of the two spouses tried to argue that the actual date of separation happened when a spouse physically moved out of a family home. This argument can seem compelling, but my own client succeeded with her claim that the actual separation date happened some years later. She provided evidence that the two parties keeping having dinner together, vacationing routinely with one another, using the same mailing address, and even filing joint tax returns. In yet another case, even when both spouses kept living together and actually slept together a few times after their supposed separation, the decision of the court was that they were in fact living 'apart and separate' for some time. In this particular case, each spouse had moved on and had serious dating relationships with others. They'd also told family and friends a divorce was pending, slept in different bedrooms, communicated only by email, and disentangled any finances except for the home that neither could keep on their own.
How is spousal support impacted by the date of separation?
The separation date is what establishes the duration of the marriage, and this is important because marriage length is often a crucial factor in figuring out long-term spousal support. The laws of California stipulate that in absence of a contrary written agreement by both parties, it's the court that has the ability to award spousal support any time the marriage is more than 10 years in length, starting with the marriage and ending with the date of separation. This doesn't actually mean support continues indefinitely, but it will mean that the liability keeps going for a while until such time as a supported spouse dies or remarries or the two parties negotiate jurisdiction termination.
Also, marriage duration is often a significant factor used in determining how long the support order lasts.
How is community property impacted by the separation date?
With a few particular exceptions, most property that is acquired through the marriage prior to separation is assumed to be what is known as community property. This is assumed to be equally owned and typically divided 50/50 or just assigned to one of the two spouses while equalization payments or assets of equal value are given to the other spouse. Even in cases where the property might be titled to the name of only one spouse, courts will equally divide the property unless an opposing spouse can 'trace' property acquisition to a different source. Any credit cards run-up prior to separation are likely to be a joint responsibility. Also, employment bonuses earned prior to separation are likely to get ordered as equally shared by both parties.If you have a separation date issue with your own case, then you should investigate specific properties and debts at issue. Also, look into whether or not alternate dates can impact how long you either get or pay spousal support.