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.
