When people enter in a
divorce, one of the first questions they’ll ask their attorney is, “When
will my divorce be final?” While this is only natural to wonder,
the date the divorce becomes official isn’t the only date that matters.
There are reasons why the “date of separation” is just, if
not more important than the date the divorce is finalized. The date of
separation can be a major factor in matters pertaining to
property division, and spousal support.
The Date of Separation in California
When does the date of separation occur? The date of separation varies from state-to-state.
Often, it comes down to the date that one spouse packs their bags and
moves out of the marital home, but that’s not practical for a lot
of married couples, especially in California where the cost of living
is so high.
Section 70 (a) of the California Family Code, the date of separation “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 by the conduct of that spouse is consistent with his or her intent to end
If you notice, the law doesn’t say anything about one spouse moving
out and that’s intentional because it’s not uncommon for spouses
to continue living together after they decide to get a divorce for the
- The couple can’t yet afford to rent a separate apartment or house.
Considering a small apartment in Los Angles can easily run upward of $2,000
a month, this is understandable.
- The couple wants to remain under one roof for the sake of the kids until
the divorce is final or the house is sold.
- It’s more practical for the couple to live together for childcare
purposes until one or both of their schedules change in the future.
How Does the Date of Separation Impact My Case?
California is a community property state, which means both spouses have
an equal or a 50 percent interest in all assets and income acquired during
the course of the marriage, regardless of who earned the money or whose
name is on the title. The main exception to the rule would be property
protected by a
postnuptial agreement, which states that certain property is to be treated as “separate
property,” which is not subject to division in a divorce.
Property division and how it’s impacted by the date of separation
is not to be taken lightly. One of the main reasons being that any income
the spouses earn after their date of separation remains their own, separate
property and it’s not subject to division in the divorce. “What
if the income was earned before the separation, but paid afterward?”
is a question we get all the time.
If one spouse earns income before the date of separation and it’s
paid afterward, it’s still community property and can be split in
the divorce. What matters in this scenario is
when the income was earned, not when it was paid out.
For example, if a woman were to win $10 million from the California lottery
before she told her husband she wanted a divorce, but she received the
money a week
after ending her marriage, her husband would likely be entitled to $5 million
of her winnings under California’s divorce laws. The same could
be said for a big bonus a spouse receives after the couple separates.
If it was a year-end bonus, the judge could consider it to be “marital
The date of separation can also impact the duration of
spousal support. In California, a marriage of long duration is 10 or more years. If a couple
has a long-term marriage that lasted 10 or more years, the judge could
order spousal support without an end date. So, if a couple split after
say, 9.5 years, but their divorce didn’t finalize until the 10-year
mark, the judge may order that spousal support be paid for 5 years (half
the length of the marriage, which is common), instead of having it last
indefinitely as in the case of a marriage that lasted at least 10 years.
What About Property We Buy?
Just as income and debts are owned equally by both spouses regardless of
who earned the money or incurred the debt during the marriage, property
purchased during the marriage is treated the same. So, if a spouse were
to buy a house or a boat with marital funds before the separation, it
would be considered marital property. In contrast, if the house or boat
after the relationship was verbally terminated with that spouse’s separate
income or assets, then it could be counted as separate property and would
belong to the spouse who bought it.
Can I Date After We Separate?
All the time, clients ask us, “Can I date after my date of separation?”
Since California is a no-fault divorce state, yes, however, parents need
to proceed with caution. If you start dating after you separate from your
spouse, your dating could impact your child custody case if: 1) your spouse
has a problem with you dating, and 2) your ex can convince the judge that
you’re somehow neglecting your children because of the dating. If
your dating appears to be interfering with your parenting, it could affect
the judge’s custody decision.
So, if you decide to date, get an attorney’s advice and be discreet
in the process. If you don’t have kids with your ex, then dating
after you separate should not impact spousal support or the divorce in
any way, unless it angers your spouse and the divorce becomes contentious
as a result.