By Marissa A. Oxman, Esq.
The “Date of Separation” is legal-speak for the date the Court determines a marriage was over. It is important because it is the cut-off point for community property (i.e., the date on which both spouses stop being entitled to each other’s new money).
In California, the general rule is that anything acquired during the marriage with funds earned during the marriage is “community property.” It gets split in half during the divorce. Unless there is a written premarital or post-marital agreement, this equal split will apply even if the property is only in one spouse’s name and even if one spouse did not contribute (work or individually earned money) to the acquisition. Assets and debts that are acquired with money earned before a marriage, with money earned after a marriage, with inheritance, or with a gift to one spouse will generally be “separate property” belonging to one spouse.
Money earned after a marriage is money earned after the Date of Separation. That money, any property bought with that money, and any debt incurred after the marriage ends is Separate Property.
The date the Court will chose for the “Date of Separation” depends on when a couple physically stops living together, when one spouse announces to the other the marriage is over, and when the couple objectively stops acting married. A court will consider all of these factors and all the circumstances of the relationship to decide when the marriage ended. This analysis can get complicated. Life is complicated and sometimes a couple’s words and conduct 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 moved out, but didn’t file for divorce for four years afterward. During those four years, he at dinner at the family home, got mail at the family home, took his “ex”-wife to social events, filed joint tax returns, and had his ‘”ex”-wife do his laundry. Even though this man and woman did not live together and even though this man intended to get a divorce, the Court decided the “Date of Separation” was the date the husband filed the divorce paperwork. In re Marriage of Baragry, 73 Cal. App. 3d 444 (1977)
- As another example, spouses can physically might be able to physically live under the same roof, but be separated for purposes of the “Date of Separation.” This is actually quite common in today’s economic climate. More and more couples cannot afford to split and live in separate homes for financial reasons. If they decide they want a divorce, live in the same house, sleep in separate rooms, are no longer intimate, do not file joint tax returns, separate their bank accounts, separate their expenses, and take other steps to show the world that they are no longer a married couple, the Court might decide the couple’s marriage is over.
- To and another level to the mix, the California legislature and Courts have been actively debating and tweaking the last about the Date of Separation since 2015. In re Marriage of Davis, 61 Cal. 4th 846 (2015); Cal. Fam. Code section 70.
Determining the Date of Separation is critical in most divorces. Imagine a scenario where one spouse communicates their intent to divorce, does not file, wins the lottery a year or two later, and has continued to file taxes and share bank accounts with their “ex.” That could cost half the lottery earnings.
Of course, the lottery example is extreme and unlikely. But it demonstrates how crucial it is to identify the Date of Separation and how it affects money and property. Whether you’re trying to decide whether you want a divorce or have already decided to get a divorce, the attorneys at Core Law Group can help you identify your Date of Separation and learn what it means.
This blog is not meant to provide legal advice, and the law may have changed after it was written. Every person and every case is different. You should speak with an attorney about your specific circumstances. Core Law Groups can help you develop a game plan that works for your specific circumstances. Schedule a consultation with one of our attorneys.