Date of Separation & Divorce

Goldberg Jones Divorce, Featured Posts, Legal Separation Leave a Comment

The law is not static. Certain statutes remain on the books for years and years, but as a whole, the system continually evolves. Issues arise, ways of thinking change, and the court system modifies the rules and regulations.

In California, one current example that will have a wide-reaching impact on divorce cases is how courts view on the date of separation.

How Does The Date Of Separation Effect Divorce In CA?

When it comes to divorce, the date of separation is an important factor. Along with your marriage date, it goes a long way towards determining the division of property, spousal support, and more.

California is a community property state. This means the court views all assets, possessions, and even debts acquired during the marriage as belonging equally to both spouses. It doesn’t matter who earned it, it’s a joint holding.

That doesn’t mean everything is split down the middle—property divided in a fair and equitable fashion. Ideally, both parties wind up on relatively even footing going forward.

Importance Of Date Of Separation

Here’s where the date of separation comes into play. Basically, once the date of separation is established, that’s the cut-off point. After that, any monies earned, property acquired, pension or retirement benefits accrued, belong to one spouse, not both.

Everything that falls between the date of marriage and date of separation is community property. On the other hand, the court vies everything outside of that timeframe as separate property.

While that seems pretty cut and dried on the surface, complications often arise. In most cases, when a couple is in the process of divorcing, one party moves out. Though that’s usually the situation, it isn’t always. And it’s in these circumstances where shades of gray creep in.

Divorcing couples continue to cohabitate for financial motives, to provide a stable environment for children, and a number of reasons. They may be in different rooms but still reside under the same roof.

In 2015, the California Supreme Court ruled on a case where even though the marriage was, for all intents and purposes, over, a couple who lived together was not legally separated.

Their marriage continued in a legal sense. The Court reasoned that it was upholding a state statute from the 1870s stating that couples must be “living separate and apart” to establish a date of separation.

The New Date Of Separation Law

Earlier this summer, in direct response to this ruling and similar cases, California Governor Jerry Brown signed State Bill 1255. This new legislation redefines the date of separation or at least allows for discussion on the matter.

Effective January 1, 2017, instead of when one spouse moves out, the established date of separation is when one spouse expresses his or her intent to dissolve a marriage. A key part of this is that “the conduct of the spouse is consistent with his or her intent to end the marriage.”

Basically, in order for the date of separation to be set, you must behave like you’re getting divorced. You can still live in the same home, but you can’t continue to go out in public and act like you’re married.

Holding hands, romantic dinners, all of that goes against the general idea. As do continuinng efforts to resuscitate a marriage, like counseling. Such efforts defeat the purpose of SB 1255.

Impact Of New Law

SB 1255 changes the existing laws to allow couples to file for divorce, serve the other party, and get the ball rolling without actually having to move out without the date of separation is an issue.

You could always file while still living together, but establishing the date of separation could be an issue. Under the new legislation, spouses no longer have to be living separate and apart to be considered “living separate and apart.”

This recognizes that there is a firm, final end to a marriage and allows the divorce to proceed from there. As you can imagine, this promises to have a number of significant effects.

As in many divorce cases, the new date of separation law has the biggest impact on longer marriages. When the length of a union reaches ten years, you must consider a number of issues. After that point, spousal support may be ordered on a permanent basis.

Beyond the decade mark, you may be eligible to collect a portion of certain retirement benefits. Social Security and military pensions, however, hinge the actual termination date of a marriage, not the date of separation.

Previously, living together, even though you intended to divorce, essentially prolonged a marriage. Now you will be able to establish a solid date of separation, stop such things from happening, and protect your assets.

Any benefits you accrue after that fact will be viewed as separate and remain individual rather than community property, regardless of where you live.

If Spouses Can’t Agree

Before, the rule was very clear—you either live together or don’t—whereas the new rule offers more wiggle room. Those who oppose SB 1255 argue it will result in an increase in cases that may clog the courts and slow down the process.

If one spouse files for divorce, in that situation, the line is distinct. But in circumstances where the process hasn’t officially begun, there may be issues. If the spouses can’t agree on the date, or if one party claims the other’s conduct was inconsistent with the intent, problems may arise and a trial may be necessary.

Related Reading: We Got Divorced, Why Am I Still On The Hook For The Home Loan?
Related Reading: Mediation Versus Arbitration
Related Reading: How Does Adultery Affect Divorce In California?

Leave a Reply

Your email address will not be published. Required fields are marked *