In any dissolution of a marriage or domestic partnership, one critical issue of fact is the date of separation. Generally, “date of separation” is defined as the time when the people involved actually separate—either physically (one party moves out of the common residence) or subjectively (when one party feels the marriage is truly over or stops describing the other as a spouse or partner).
Why is this important? In California, this marks the period when “community” ends. Practically anything acquired or incurred from the date of marriage or domestic partnership until the date of separation is presumed to be a “community” asset or debt. So when the time comes for a divorce or dissolution of domestic partnership proceeding, these issues are affected by the “date of separation”:
Division of Property
The legal presumption is that anything acquired by either party between the start of the marriage and the date of separation is subject to equal division by the Court. This can include physical possessions (house, car, furniture, etc.), as well as such things as businesses, retirement and other financial accounts. A more recent date of separation, for example, may potentially increase the amount of one party’s retirement that is considered community property.
The date of separation can also be a key factor in the determination of one party’s entitlement to spousal support. Duration of marriage/domestic partnership often plays a significant role in determining both the entitlement to spousal support as well as the duration one’s spousal support obligation to the other party should last. Additionally, the Court will inquire as to whether or not the partners’ lifestyle changed significantly between the beginning of marriage and the date of separation? Finally, the parties’ respective levels of income and availability of resources are examined in light of the official date of separation when making spousal support determinations.
Just as with property division, the Court looks at the timeline of the marriage for when debt was incurred. Debt obligations which take place during the marriage are presumed “community debt” and are subject to equal allocation, regardless of whose name is on the debt account.
When two parties decide the marriage or domestic partnership is over, they need to carefully document this decision to assist in future determination of the date of separation. This may include email communications (e.g. “I believe the marriage is finished, do you agree?”) or anything that demonstrates a physical separation, such as the lease you enter into when moving out of the community residence. Copies of statements showing the account balances and/or valuations on the date of separation are also useful to assist in future property and debt division.
Why go to the trouble of doing this? The best reason of all: Documenting the date of separation (and agreeing on it) as well as preserving records of valuations and balances for property and debts can substantially reduce the time spent in litigation, saving both parties potentially thousands of dollars in legal costs.
Are you in need of legal counseling for divorce or dissolution of a domestic partnership? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from family law, estate planning, bankruptcy, and DUIs and landlord/tenant disputes.