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California Divorce, Why Your Date of Separation Matters

August 5, 2021 Uncategorized

One of the first concerns individuals ask their attorney when they start a divorce is, “When will my divorce be final?” While it’s reasonable to be curious, the date the divorce is finalized isn’t the only date that matters. There are several reasons why the “date of separation” is as essential as, if not more important than, the “date of divorce.” When it comes to child support, property split, and spousal support, the actual date of separation can be a big influence.

Your Separation Date in California

When does the separation officially take place? State-by-state, the date of separation varies. It often boils down to the date on which one spouse packs their belongings and leaves the marital home, but for many married couples, especially in California, where the cost of living is so high, this is unrealistic.

The date of separation, according to Section 70 (a) of the California Family Code “means the date that a complete and final break in the marital relationship has occurred, as evidenced by” one spouse expressing to the other spouse that they want a divorce and that spouse’s conduct is consistent with his or her intent to end the marriage.

It’s worth noting that the legislation makes no mention of one spouse moving out, which is deliberate because it’s not unusual for spouses to continue living together even after filing for divorce for the following reasons:

• The couple is unable to rent a separate apartment or house at this time. This is logical, given that a tiny apartment in Los Angeles may easily cost upwards of $2,000 per month.

• It’s more practical for the couple to live together for childcare purposes until one or both of their schedules change in the future. 

• The couple wants to stay under one roof for the sake of the kids until the divorce is finalized or the house is sold.

What Effect Does My Separation Date Have on My Case?

For family law purposes, the State of California is a community property state, which means that regardless of who earned the money or whose name is on the title, both spouses have an equal or 50% interest in all assets and income gained during the marriage. Property protected by a prenuptial or postnuptial agreement, which stipulates that particular property is to be recognized as “separate property,” which is not susceptible to distribution in a divorce, is the principal exception to the rule.

Division of property and how the date of separation affects it should not be taken lightly. One of the key reasons is that any income earned by the spouses after their separation date remains their own property and is not susceptible to divide in the divorce. A common issue we get is, “What if the income was generated before the separation but paid afterward?”

If one spouse earns money before the date of separation and receives it subsequently, it is still considered community property and can be divided in a divorce. When it comes to this issue, when the income was made is more important than when it was given out.

For example, in the event that a lady wins $10 million in the California lottery before telling her husband she wants a divorce and receives the money a week later, her husband is likely to be entitled to $5 million of her earnings under California’s divorce laws. A large bonus received by a spouse after the relationship separates could be compared to this. The judge could deem it “marital property” if it was a year-end bonus.

The length of spousal maintenance depends on the date of separation. A long-term marriage in California is defined as one that lasts ten years or more. If a couple has been married for ten years or more, the judge may grant spousal support without a time limit. So, if a couple divorces after 9.5 years but the divorce isn’t finalized until the 10-year mark, the judge may order spousal support to be given for 5 years (half the length of the marriage, which is common) rather than permanently as in the case of a marriage that lasted at least 10 years.

What About the Property We Purchase?

Property purchased during the marriage is considered in the same way that income and debts are owned equally by both spouses, regardless of who earned the money or incurred the obligation during the marriage. So, if a spouse used marital monies to buy a house or a boat before the divorce, it would be deemed marital property. If the house or boat was purchased with that spouse’s separate income or assets after the relationship was verbally terminated, it would be considered separate property and belong to the spouse who bought it.

Is it OK for me to date after we’ve split up?

Clients frequently inquire, “Can I date after my separation date?” Yes, but parents should act with caution because California is a no-fault divorce state. If you begin dating after you divorce, your dating could have an influence on your child custody case if: 

1) your spouse objects to you dating, and 

2) your ex can persuade the judge that you are ignoring your children as a result of your dating. 

If your dating looks to be interfering with your parenting, the judge’s decision on custody may be influenced by that.

Therefore, if you opt to date, seek legal guidance and maintain discretion during the process. If you don’t have children with your ex, dating after you’ve separated should have no bearing on spousal support or the divorce, unless it enrages your spouse and makes the divorce acrimonious.

You can give us a call at Spodek Law Group to get a free, confidential consultation from one of our highly skilled California divorce attorneys. 



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