Often, the line between being married and being separated is blurred. Couples considering divorce have the option to experiment with a trial separation in order to give the spouses time to consider if divorce is their best option. Other couples decide to file for divorce and later reconcile. Sometimes those couples continue with the marriage and other times they resume divorce proceedings. The decision to end a marriage can be difficult and messy, however the parties’ actions between the time of separation and a dissolution judgment can impact their case significantly.
One reason why date of separation is so crucial is that it is used as the dividing line between the beginning and the end of the marriage. Surprisingly, for the purposes of property division, the date of divorce is not used as the date of the end of the marriage. California is a community property state. This means, for the most part, any contributions by either spouse after the date of marriage belongs jointly to both spouses. Any income of either spouse belongs jointly to both spouses. Further, any property or assets purchased with that income belongs jointly to both spouses. Few assets such as inheritances or property acquired before marriage are separate property.
To complete the divorce process, depending on the circumstances, can take anywhere between a few months to over a year. Presumably, both spouses will continue working during this time and purchasing assets. Do these assets and income belong to the respective spouses as separate property or to the spouses jointly as community property? How will these assets be divided upon divorce? Under California Family Code section 771, the earnings and accumulations of a spouse, while living separate and apart from the other spouse, are separate property of the spouse. Therefore, anything acquired by either party between the date of separation and the divorce is separate property. The next problem is – when did the couple “separate”?
Date of separation is often a hotly contested issue because it can determine how a number of significant items are distributed. For instance, it can determine whether a marriage is long-term or short-term, if one spouse is entitled to the lottery winnings of the other, and whether one spouse is entitled to any number of valuable assets acquired by the other spouse during the dissolution process. It would seem that deciding when the parties separated is an easy task that both parties could easily agree on. However, in a potential divorce situation, the behaviors of the parties can be confusing and separating spouses often send mixed signals to each other. When determining the parties’ date of separation, the court looks to their private conduct rather than how they behave publically. This comes from an understanding that many couples keep up public appearances of a marriage for many different reasons such as for the benefit of any children they have. The ultimate question to be decided in determining the date of separation is whether either or both parties has the subjective intent to end the marriage and furthers that intent through objective conduct. This is a factual question and the court looks at various steps taken by the spouses to demonstrate the final breakdown of the marriage.
In order to ensure the court views your actions as conduct furthering the intent to end the marriage there are a few steps you can take. First, live separate and apart from your spouse. To be clear, this means moving out of a common residence. Second, cease engaging in any romantic conduct. Do not send cards, flowers, or any gifts to your spouse because this could be construed as an attempt at reconciliation. Third, do not perform marital duties such as doing laundry, cooking, or cleaning for the benefit of the other spouse. Fourth, communicate your intent to end the marriage to your spouse clearly. Fifth, immediately cease the commingling of finances with your spouse, especially the purchase of any real estate. Finally, simultaneously attending social gatherings with your spouse is a mixed bag. One court held that as long as the spouses were not attending these functions “together” there was no problem deciding date of separation at an earlier time. However, many still argue that this attendance is controversial.
Please contact us if you are considering a divorce from your spouse or have questions regarding custody. San Diego Family Law Attorney Nancy J. Bickford is the only board-certified divorce lawyer in San Diego who also holds an MBA and a CPA. Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.