The date of separation is the marker of the end of the marriage. Why is this important? California is a community property state. When two people marry, they have equal ownership of all property, assets, and debts.
Everything before the date of separation is community property subject to equal division.
Secondly, the date of separation is also used to determine spousal support. If your spouse files for divorce in 2021 but states the actual date of separation was in 2015, do you now oww 6 years of spousal support? It is possible. But you could argue that you separated in 2021.
The question then shifts to this: what determines separation?
Marriage of Davis
This is the case where the date of separation was being argued by two people who used to be former husband and wife. It went all the way to the California Supreme Court. The following is the timeline of events that transpired:
- They married in 1993
- The wife stated that the couple stopped being intimate in 1999
- The two stopped sleeping in the same room between 2001 and 2004
- The husband opened a personal bank account in 2001
- The wife opened an individual account in 2003
- In 2006, the wife verbally stated she was done with the marriage
- The wife filed for divorce in 2008, but the husband moved out in 2011
The husband claimed the date of separation was 2011 when he moved out of the home. The wife claimed the date of separation was 2006 when she said she wanted to end the marriage.
The date of separation would determine if the husband owed 5 additional years of spousal support. Ultimately, the California Supreme Court decided that the deciding factor was that the two people lived together until 2011. Therefore, the date of separation was 2011.
Things Changed Again After Marriage of Davis
After the Marriage of Davis, being separated was marked by “living separate and apart.” This changed in 2017 when the governor of California, Jerry Brown, signed a new bill. No longer was living separately a key factor in determining the date of separation. These 2 things would determine the date:
- One person expresses (to his or her spouse) an intent to end the marriage
- The actions of one spouse are “…consistent with his or her intent to end the marriage.”
This is a prime example of why it is important to consult an attorney throughout your separation and divorce process. Because of the newest bill, you can possibly be separated while living in the same house.
For example, if someone declares an intent to end a marriage and his or her actions are in line with that wish. Then his or her spouse acquires assets afterward. Did this person give up their claim over the assets? These are the types of questions your attorney can help you navigate.
Ahluwalia Law, P.C.
If you have any further questions or needs regarding legal issues surrounding family law or mediation, contact us to schedule an appointment. If you are not already involved in family law litigation, you may be eligible for a free consultation. We can also be reached at (408) 416-3149.
