• Samira Amato

Know Your Legal Separation Date & How it Affects Your Divorce Case

Updated: Aug 21

As many people are filing for Divorce or Legal Separation, it is essential to pay close attention to the date of separation on its legal consequences. The date of separation is a legal term as defined in Cal. Family Code Section 70 and ends the financial union between a couple.

Date of Separation Impacts Community Property Division:

Under California Law Separate property is defined as:

- Property owned by the spouse prior to marriage;

- Property acquired by the spouse after marriage;

- Property acquired by the spouse by gift or inheritance;

- The rents, profits and issues of the separate property of the spouse;

See also Cal Family Code Section 770 , 771 and 772.

This means if a spouse receives a significant bonus, commission or stock award after the date of separation it may be considered that spouse’s separate property asset. Often times, in divorce proceedings this becomes a common issue of dispute where the spouse receiving the bonus will claim that the separation date was before he or she received the bonus in an effort to declare it his or her sole and separate property. Given the significance of the date of marriage on each party’s financial position, it is critical to choose an accurate date of separation for your filings with the Court.

Date of Separation Impacts Spousal Support Award:

Since the date of separation ends the union of a marriage or domestic partnership, it is a critical factor in categorizing the relationship as a longer-term or short-term. Pursuant to Cal. Family Code Section 4336 there is a presumption that a marriage of 10 years or more, is a marriage of long duration. As such, the length of your marriage has a direct impact on how long you may be entitled to receive spousal support. While long term marriages do not guarantee spousal support for life, the length of marriage is a critical factor in calculating the length spousal support is awarded.

In cases where there is no agreement on the date of separation, the Courts will look at evidence to show a complete and final break of the marital relationship. The Courts will review evidence that will demonstrate one spouse has expressed to the other the intent to end the marriage as well as the conduct of the spouse being consistent with the intent to end the marriage. The courts will look at evidence such as physical separation, tax filings, social gathering/interactions with third parties, taking holidays or vacations together and other evidence that shows financial and social entanglement.

It is important to know how the law defines legal separation and its impact on your divorce case prior to your filing.

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