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California Date of Separation: Why It Matters

The date you married your spouse is usually unforgettable. You may even remember the date you met. But if you're getting divorced in California, there's one more date you'll need to pin down — your date of separation. Unlike your wedding date, your date of separation may not be obvious, but it is very important. 

Date of Separation and California Property Division

California is a community property state. This means that, with very limited exceptions, any property acquired by either spouse during the marriage is considered to be owned equally by both, regardless of who earned or acquired it. “During the marriage” is the period from the wedding date to the date of separation. Often couples agree, at least roughly, on when they separated, and, to the extent that the dates differ, there may not be a lot of practical difference if no significant assets were acquired in between. 

Sometimes, however, the parties each claim a very different date of separation. If one party claims the couple separated on March 1, and the other spouse says it was September 1, and one of them, during that six month period, received a half-million dollar bonus, the date of separation is the difference between the other spouse potentially receiving $250,000 from the payment and receiving nothing. To complicate matters, an asset is considered to be marital or separate based on the date it was earned, not the date it was paid. 

Date of Separation and California Spousal Support

The other reason date of separation is important in a California divorce is the impact it has on spousal support awards. The amount of spousal support hinges partially on the duration of a marriage. California courts retain indefinite jurisdiction over marriages of long duration (unless the couple explicitly agrees otherwise). California law presumes that a marriage of ten years or longer is a marriage of long duration. 

In the example above, if the couple's ten year anniversary would have taken place on June 1, whether the date of separation was determined to be March 1 or September 1 would affect whether their marriage was presumed to be long-term, and whether the court therefore could award indefinite spousal support. The parties could certainly present the court with evidence that their marriage should or should not be considered long-term; however, if the marriage has reached that ten-year threshold, it's likely the spouse arguing that the marriage was long-term would have less of a burden in convincing the court of that position.

What is the Test for California Date of Separation?

With so much at stake depending on what the date of separation is determined to be, how do California courts determine date of separation? To many people's surprise, the date of separation is not necessarily when the parties stop living together.

The test for when a couple has separated is set forth in a case called In Re Marriage of Hardin (1995) 38 Cal.App.4th 448. The Hardin test, as it is known, boils down to whether either or both of the parties believed the rift in their relationship was final. The Hardin court said that the parties' subjective beliefs on this matter were to be objectively determined from their words and actions during the disputed period of time. The court uses this evidence to determine exactly when the couple themselves perceived the rift as final. 

In light of the Hardin test, a couple could be sharing a house for economic reasons, but be sleeping apart, barely speaking, and telling their friends, "it's over," and a California court would likely find that they were separated, despite the common address. On the other hand, a couple might choose to live separately, but socialize, dine, vacation and spend holidays together, and the court might conclude that even though they lived apart, they had not separated for purposes of the Hardin test.

If date of separation is likely to be an issue in your California divorce, the cost of experienced advocacy is much less than what you stand to lose without it. To learn more about how Shaffer & Associates' experienced family law attorneys can help you, contact Shaffer & Associates online or call (619) 595-3167 today to schedule a free consultation.

Categories: Divorce

San Diego Bar AssociationSection of Family LawCalifornia State Bar Family Law American Bar Association Avvo Clients' Choice 2014