Am I Separated?
One of the first issues I discuss when I meet with a client is their “date of separation”. Most people know their date of marriage, but the date they separated from their spouse can be more difficult to determine.
A lot is riding on this date as the accumulation of community property, such as an interest in financial and retirement accounts, can be affected by the date of separation.
Also, the duration of spousal support can be impacted by the length of a marriage.
Effective January 1, 2017, there is a new California Family Code §70 that defines “date of separation”.
Section 70 states, in part, that ‘“Date of separation” means the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following:
(1) The spouse has expressed to the other spouse his or her intent to end the marriage. ”
Example: Secretly deciding that you no longer want to be married and taking actions without your wife or husband’s knowledge does not mean that you are “separated”.
“(2) The conduct of the spouse is consistent with his or her intent to end the marriage.”
Example: one spouse has opened a new bank account in their name only.
Another example: one spouse moves out of the residence. Although living separately is not required to be considered “separated”.
Some spouses continue to live together until their divorce is completed and the community property assets are divided. It may be too expensive to live separately, while the assets are still undivided.
For instance, if the parties anticipate selling the family residence, they may continue to live there until the home is sold and the funds divided between them.
This would not work if there are issues of domestic violence or one of the spouses wants to live with a new partner.
California Family Code §70 also contains a provision that states: “In determining the date of separation, the court shall take into consideration all relevant evidence.”
Everyone’s story is unique and there may be circumstances where one spouse thought they were separated and the other did not.
It is important to obtain legal advice early concerning your “date of separation”, to avoid mistakes that could cause you to lose spousal support or community property assets that you might otherwise be entitled.
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