Date of Separation

What is the date of separation?

It is common for parties to the dissolution to proffer different dates of separation, depending on the facts of their specific matter.  The Court stated in In Re Marriage Hardin, 38 Cal.App.4th 448 (1995), “The question to be decided in determining the date of separation is whether either or both of the parties perceived the rift in their relationship as final. The best evidence of this is their words and actions.”  

The Court in saying, in essence, that the parties need to have a subjective understanding that their marriage is over, manifested by outward actions. These actions can include living in two separate residences (In Re Marriage of Norviel, 102 Cal.App.4th 1152 (2002)), or not applying for joint credit (In re Marriage of von der Nuell, 23 Cal.App.4th 730 (1994)). 

Why does the date of separation matter?

In dissolution proceedings, the date of separation can be a hotly contested issue, as seen through the very public divorce of Nicole Kidman and Tom Cruise, who battled over the exact date of separation at length.  Some may wonder if the date of separation is irrelevant to them, or why it matters.  There are two main reasons why the date of separation matters in dissolution: community property and spousal support.

Community Property: Property acquired before the date of separation is considered community property, and property acquired after the date of separation is considered separate property. Community property is defined in the California Family Code section 770 as “all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property." Separate property, on the other hand, is defined as “[t]he earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, while living separate and apart from the other spouse, are the separate property of the spouse." Applying California law to a marriage situation, it is easy to see that while the parties are married, all the property acquired by the married person (with some exceptions stated elsewhere in the code) is community property and that the community property rights stop accruing once the parties have separated. Community property is considered owned equally by both parties and it is generally divided 50/50 in a divorce, while separate property is awarded 100% to the party who owns/earns it.

Spousal Support: Under Family Code §4336, “the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage…where the marriage is of long duration” and a marriage of long duration is defined as “a marriage of 10 years or more.” In contrast, for a marriage of less than ten years duration, Family Code §4320(l) states that support “generally shall be one-half the length of the marriage.”  The distinction between marriages of short or long duration provides incentive for divorcing couples to pay close attention to the exact length of marriage if it is near the ten year mark.  It is important to remember, however, that the Court will take factors other than the length of marriage into account when awarding spousal support, including ability to work, age, and the general ability of the spouse to support his or her self.   See In re Marriage of Ackerman (2006) 146 Cal.App.4th 191.