There is a legal concept called “date of separation” that is very important in some divorces and of no real importance in others. It is relevant in California to the division of your assets and debts and to the length of your marriage for the purposes of spousal support.
The date of separation establishes the endpoint used in determining the legal length of the marriage. The length of the marriage is one of the 14 factors judges are required to take into account in establishing post-divorce spousal support. The earliest date from which you can begin receiving court-ordered spousal support is the date of filing of the divorce petition (not the date of separation).
If you and your spouse come to your own agreement as regards division of property and spousal support, perhaps with the help of a mediator, you get to choose how much if any importance to give to the date of separation.
How to Determine the Date of Separation?
California Family Code Section 70 defines the “date of separation” as the date that a complete and final break in the marital relationship has occurred, as evidenced by:
- one spouse expressing to the other the intent to end the marriage and
- that spouse’s conduct thereafter being consistent with the intent to end the marriage.
If a court is required to determine the date of separation, the court must take into account all relevant evidence. Sometimes in contested divorces this becomes a lengthy trial all by itself.
Preferably, the two of you can agree on a date of separation.
Dividing Assets and Debts – Date of Separation
In brief, here is how the date of separation relates to the division of assets and debts. The period of the marriage for the purpose of dividing assets and debts is legally considered to start on the date of marriage and end on the date of separation. The property and debts of the marriage are normally distinguished from assets and debts that each of you may begin to acquire as separate (even though still married) persons.
The assets and debts in a divorce can include community-owned (marital), separately-owned, and mixed-ownership (part community and part separate) property and debts. The date of separation is the legal demarcation near the end of the marriage dividing community from separate.
Family Code 771 says that the income and expenses that each of you have after the date of separation are no longer legally considered to be marital income and expenses. Instead they are yours as separate persons. Similarly, debts incurred by a spouse since the date of separation are generally the responsibility of that spouse.
What if you can’t work out your own division of assets and debts and a judge has to do so? The law says that for the trial in front of the judge, by default, each marital asset and debt should be valued “as near as practicable to the time of trial” – not as of the date of separation. The law allows the judge to use a different valuation date between the date of separation and the trial but mainly if this is the only way to accomplish an equitable division.
When you are working out your own asset/debt settlement outside of court, you get to decide what valuation date you want to use for each asset and debt.
It’s wise while going through a divorce to have clear agreements as to how the two of you will financially consider and handle the period from the date of separation until the divorce is final.
The date of separation can become very important when there were major financial transactions around the time of separation – especially when the two of you don’t agree on the date of separation and this disagreement has significant financial ramifications. If these issues are litigated, the matter can become complex, time-consuming and expensive to resolve.