The Significance of the Date of Separation in a Divorce

Oct 26, 2023 | Uncategorized

When you begin the process of filing for divorce, you and your spouse will need to identify the date of separation. This is the day your marital relationship ended.

The date of separation is crucial in divorce proceedings because the length of your marriage is measured from the date you marry to the date of separation. The length of a marriage impacts the division of property and spousal support, as well as social security and other benefits.

What is the Date of Separation? 

The California Family Code defines Date of Separation as “the date that a complete and final break in the marital relationship has occurred.” A complete and final break has occurred when, either by words or actions, one spouse expresses to the other spouse the intent to end the marriage. After that date, the spouse who expressed intent to end the marriage also needs to act in a consistent manner with their intent. This seems straightforward, but in practice it’s not always quite so simple.  

For example, if a married couple has a major argument and one moves out temporarily, that does not necessarily qualify as the date of separation unless the intent to end the marriage is clearly expressed. 

Even if one spouse tells the other spouse that he or she wants to permanently end the marriage, if they fail to act in a consistent manner, then a complete and final break has not occurred. 

What Happens if the Date of Separation is Disputed?

If your spouse contests the date of separation, being able to produce evidence to show that you acted consistently with your intent to end the marriage is very important. A lease for a new apartment separate from your spouse can show your wish to end the relationship. Opening a separate bank account can also indicate that you acted in a manner consistent with ending the marital relationship. 

However, this type of evidence is not always dispositive. Being consistent in your actions is very important. Maintaining an intimate relationship with your spouse, continuing to wear wedding rings, celebrating holidays together, and continuing to hold  yourselves out to friends and loved ones as a married couple will undercut a claim that you have actually separated. 

The Difference Between Date of Separation, Legal Separation and Divorce

It’s a common assumption that the ‘date of separation’ is the same as being ‘legally separated,’ but this is inaccurate. Couples who do not want to divorce for religious or other reasons may opt for legal separation instead. There are certainly some similarities between legal separation and divorce, but they are not synonymous.

In a legal separation, the court decides the same issues it would in a divorce case, such as child custody, child and spousal support, property division, and debt allocation. However, legal separation does not end the marriage and neither spouse is free to remarry as it would with a divorce. This may be valuable to some couples who wish to continue certain benefits of the marriage, such as health insurance.

The date of separation is the end of the economic partnership and the point at which assets and debts are no longer considered community property. Whether you pursue a divorce or a legal separation, your date of separation is an issue to be determined during that proceeding. Petition or Judgment for legal separation is not necessary to establish a date of separation.

Why is the Date of Separation Critical?

The date of separation can impact how assets and debts acquired during marriage are divided. It can also determine the duration of spousal support.

With some exceptions, community property consists of all assets that either spouse acquired and all debts either spouse incurred between the date of marriage and the date of separation. Separate property includes the assets each spouse acquired prior to being married, during marriage by inheritance or gift, and after the date of separation. Separate property also includes debts incurred prior to marriage and after the date of separation.

Characterizing assets and debts properly, as either community or separate property, determines how marital assets and debts are divided. For example, if one spouse takes out a loan to buy a new car before the date of separation, the car is a community asset and the outstanding loan balance is a community debt, both of which must be divided between spouses. On the other hand, if the car was acquired after the date of separation, the car belongs exclusively to the spouse who bought it, and so does the debt. This is why having documentation to verify the date of separation is important.

The date of separation is also critical in determining how long spousal support will be paid or received. 

Courts look at evidence to decide spousal support arrangements. Part of the equation is the length of the marriage, and the date of separation determines just that. As a general rule, spousal support continues for half the length of the marriage if the marriage lasts less than 10 years. For long-term marriages of 10 years or more, spousal support can continue indefinitely at whatever amount the court decides. It is important to note that length of marriage is only one factor the Court considers in determining an appropriate spousal support order, and the Court has wide discretion to make an order that considers the unique circumstances of your relationship. 

Moving Forward

The date of separation can greatly impact the outcome of your divorce. At Alaimo Boyer, APC our goal is to help you understand the aspects of your divorce that impact your ability to get a fair resolution. Get in touch if you need guidance on establishing a date of separation.