date of separationThere 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?

There was a 2015 California Supreme Court case in which physical separation was deemed to be necessary to establish that separation has occurred, although a footnote in the decision left open the possibility that separation could perhaps be established with both spouses still living under the same roof.

Previously, the date of separation was when one spouse made it clear that they intended to make a complete, final break and followed this up with clear and unambiguous continuing conduct furthering that intent. If the spouses still lived together, this conduct would probably include sleeping in separate rooms and there would be compelling (perhaps economic) reasons why the spouses continued to live together despite the clear intention to divorce.

Preferably, the two of you can agree on a date of separation. If a court has to determine the date of separation, the court may simply use the date of physical separation (if there is one) but it may also consider evidence of conduct and all relevant circumstances.

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.

It is wise while going through a divorce to have clear and perhaps detailed agreements as to how the two of you will financially 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.

Ideally you avoid all this this by coming to your own agreement as regards a fair and appropriate division of your assets and debts and as regards the treatment of financial transactions that happened around and since the time of your separation.