If you are considering a divorce in California, your separation date is a very important issue.  This article will discuss why that date is significant.

The separation date defines the line between community property and separate property.

• Community property in general is assets, income, or debts earned or acquired during the marriage.
• Separate property in general is property owned before the marriage, property inherited or gifted to one part during the marriage, money from the rent or sale of a separate property, money earned while legally or physically separated from the spouse, and items given from one spouse to the other with the intention of designating it as separate property.

Community property is shared by the spouses, separate property belongs to the individual.

• The separation date is important because the determination of the type of property determines how it is split. Community property is shared by the spouses.  Separate property is for the individual.

How is the date of separation determined by a court?

If the date of separation is unclear or the parties disagree, the court will look at two methods for determining the effective date:

• Objective test: Here the court will determine when you started living apart from each other. However, in some instances the spouses may be living in the same home but be physically separated within the home if the evidence suggests that the spouses unambiguous conduct indicates an intent to be separated.

• Subjective test. Here the court will look at your conduct toward each other. At what point did one or both of you think you were done? When did you decide you no longer wanted to be married?

What should you watch out for?

• The higher earner is typically incentivized to have a date of separation sooner rather than later. It is often in that person’s interest to have an earlier date so that more of the income or assets will be earned after the separation date.

In some cases, the date of separation is agreed upon by the parties, but this article should alert you to concerns and questions that may arise if the date of separation is contested.  Consult with an attorney early in the process of considering a divorce to find out how to navigate the date of separation mostly advantageously to your case.

 

 

 

 

Do you have a teenager?  If so, you’ll want to know what rules are specific to teens when it comes to custody.  This article will focus specifically on teens and outline some of the rules and considerations that will help you create a smoother experience for your teen in coping with divorce and change.

 

• Does my teenager have a say in custody?  Typically, yes.

 

Children of any age can address the court, but as per Family Code 3042, children 14 years of age or older specifically can address the court regarding custody and visitation, unless the court determines that it is not in the child’s best interest.  This means that unless there is a special circumstance, your teenager will get to have a voice in the process if he or she so desires.

 

• Will it matter what my teenager’s preferences are?  Typically, yes.

 

California judges must promote the best interest in the child after considering the factors, which can include the preference of the child.  There is no exact formula as to the weight the child’s preference has in the overall determination. What this means is that your teenager’s choice isn’t necessarily the final answer, but it will likely weigh into the judge’s decision.

 

• How does the court hear the teen’s preferences?

 

The judge has discretion to talk to the child in open court or in chambers. The parents may be present but they may not.  The judge has a wide latitude in determining how to get the information needed, and as always must take into consideration the best interest of each child.

 

• What issues should I think through with my teenager and the divorce?

 

Often teens go through a lot of changes at this time of their lives, so you can probably expect some adjustment challenges that may need to overcome.  Does your teenager have a car that will enable the teen to ignore custody plans? Do you and the other parent have similar rules for curfew, financial support of the teen, etc.?  What will be your strategy if your teen’s preferences for custody change over time? A wise parent will think through the potential issues and challenges that may arise with the teen and talk about those issues before they become big problems.

 

• Can I modify the custody arrangement?  What if my teenagers preferences change?  Yes.

 

Yes, the existing custody order may be modified when there has been a change in circumstances. It may be that the teen’s preference is the change in circumstances, or it may be that other changes are prompting a modification. Again, the court will consider what suits the best interest in the child and will consider all the same factors that were used initially to establish custody. The teen can play a role in voicing opinions for the modification just as the teen’s preferences factored into the original custody determination.

You teenager is going through a lot of changes themselves and in their environment, so a divorce can be an additional stress.  However, your teen is likely also more capable of understanding and processing the divorce process than small children, and the opportunity for your teen to participate in the custody process can be a step in the right direction of helping them navigate the future.