Date of Separation
What is the Date of Separation?
Family Code Section 70 defines the Date of Separation:
“‘Date of separation’ means the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following:
(1) The spouse has expressed to the other spouse the intent to end the marriage.
(2) The conduct of the spouse is consistent with the intent to end the marriage.” [1]
Why is the Date of Separation important in a Divorce?
Determining an accurate Date of Separation is important in a divorce because it affects two major aspects of divorce: Property Division and Spousal Support.
Property Division
California is a Community Property state, meaning that all property acquired during the marriage belongs to the Community (and is divided equitably upon Divorce). The Community begins on the date of marriage and ends on the Date of Separation. Accordingly, the Date of Separation is important for property division because it indicates the end of the Community. All property acquired prior to the marriage and after the Date of Separation is the Separate Property of the individual who acquired it - and therefore not subject to division upon divorce. [2]
Spousal Support
The length of the marriage is one factor the court considers when awarding Spousal Support. The length of the marriage is calculated from the date of marriage to the Date of Separation. Generally, if a marriage is a short-term marriage (i.e. shorter than 10 years), the court typically awards Spousal Support for one-half of the length of the marriage. If a marriage is a long-term marriage (i.e. 10 years or longer), however, the court may award what is considered Permanent Spousal Support, meaning there is not necessarily a fixed end date. [3]
Can we do Mediation if we don’t agree on our Date of Separation?
YES - Couples who are unsure about, or disagree about, their Date of Separation can benefit from Mediation. It is not uncommon for couples to disagree on their Date of Separation because it can be difficult to determine the exact date that is defined by Family Code Section 70. It is, however, in the couples’ best interests to agree on a Date of Separation for the purposes of moving forward with their divorce, which a Mediator can help facilitate. You will, ultimately, need to list a Date of Separation on your final Judgment, however, Mediation allows you the flexibility to divide your Property and establish Spousal Support in whichever way you both agree is equitable.
If you were to litigate the issue, rather than proceed through Mediation, a trial to determine the Date of Separation is not only costly, but incredibly intrusive into the very intimate details of the couples’ relationship and personal lives, and can sometimes require the testimony of those people closest to you. Asking your friends and family to become part of your divorce is not ideal.
Lea M. Nemeth, PC is dedicated to helping you achieve the best possible outcome for your particular circumstance. Book a Consultation today to learn more about how Mediation can benefit you and your loved ones.
Related FAQs:
Are we Legally Separated on the Date of Separation?
No, Legal Separation and the Date of Separation are entirely different legal concepts. Please see our article Legal Separation vs. Divorce for more information.
Footnotes
[1] Family Code § 70(a), emphasis added.
[2] See Family Code § 760
[3] See Family Code § 4336(b)
