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Does my ex-spouse get half of my lottery winnings? It depends on the date of separation.

Take the example of a person who moves out because they want to divorce but wins the lottery before they actually file for divorce?  What happens to the money? Is it split? The answer is it depends on the date of separation.

As divorce attorneys we are often asked by our clients if their spouse is entitled to property they obtain once they decide to end the marriage.  The short answer is that as soon as they “separate” the property that they obtain belongs to them only.

So when does separation occur?  Officially a “Separation” occurs when either party does not intend to resume the marriage and his or her actions bespeak the finality of the break in the marital relationship. The Courts have said that there must be problems that have so impaired the marital relationship that the legitimate objects of matrimony have been destroyed and there is no reasonable possibility of eliminating, correcting, or resolving the problems.

Well the legal definition is a bit confusing.  In simple terms it means that a party is “separated” when one spouse communicates to the other that the marriage is over and that they no longer wish to continue or reenter the marriage.  This can be done through words or through conduct.  However, the words and the conduct cannot contradict each other.

For example, there is a famous case where the husband told his wife that he wanted a divorce and even moved out of the house.   He did move out and then four years later filed for divorce.  He argued that the date of separation was when he moved out.  However, the Court disagreed and ruled the date of separation was when he filed for divorce.

Why? The court reasoned that the husband’s conduct contradicted his words.  The court found that the husband (1) frequently ate dinner at the family home, (2) maintained his mailing address there, (3) took his wife to social events and his family on vacations and to sporting events, (4) continued to file joint income tax returns with his wife, and (5) regularly brought his laundry home for her to wash and iron. These actions by the husband showed that he was still acting as the marriage was active.  In his case the property he acquired all the way up to the date the divorce was filed was community property and except for a few exceptions should be split evenly.  To read the actual case read In re Marriage of Baragry on Justia.

On the other hand parties can still live together and be found to have been “separated.”  This is actually quite common in today’s economic climate.  More and more married couples can no longer afford to split homes because of financial reasons.  The fact that they still live together does not necessarily continue the date of separation.  There are many cases where people reside under the same roof but their words and conduct are sufficient to hold them separated.  They no longer occupy the same bed room, they are no longer intimate, they don’t file taxes together anymore, and/or they split the rent.  These are types of actions that help demonstrate that the parties were separated.

Determining the date of separation is critical in many divorces.  Imagine a scenario where a person communicates their intent to divorce but does not file, separates and a year or two later wins the lottery.  However, they continued to file taxes together for financial reasons.  That one fact could potentially cost them half of their lottery earnings.

Of course, the lottery example is extreme and unlikely.  However, it is crucial that one learns about separation and how it could affect the property they acquire. The best rule to follow is to educate yourself on what you should do if you are in a situation where divorce is pending.

To learn more about this topic or other divorce and family law issues visit the Core Law Group blog at www.www.corelawgroup.com/blog or call one of Core Law Group’s Orange County Divorce attorneys at 949-505-2479.