Why the Date of Separation Matters
When a couple files for legal separation or divorce in California, the exact date of separation has a significant impact on future division of property. The date of separation is used to appropriately identify community property and separate property. Property purchased by either spouse after the date of marriage and before the date of separation is considered to be community property. All property purchased after the data of separation is separate property.
The first time you meet with a divorce or family law attorney, you will be asked to provide your date of separation. Unless both spouses mutually agreed to end the marriage on the same day, it can be difficult to identify the exact date of separation. And do not be surprised if the other spouse has an entirely different date of separation.
Separation date is exceedingly important under California law. It is used to determine property ownership and division. If the spouses do not agree on the date of separation, the court has two tests it can use to decide the separation date. One test is objective and the other is subjective.
The Objective Test
The objective test is based o the date spouses began living separately from one another. This means that one spouse probably moved out of the home. Because of financial constraints, this is not always possible. It can be costly to pay for two homes. Even if they are living under the same roof, the spouses may remain physically separated.
The Subjective Test
Unfortunately, physical separation is not actual proof spouses have legally separated. Many couples live separately but remain happily married. The subjective test focuses on the intent of the living arrangements.
The court will ask when the spouses believed the marriage to be over. Spouses will need to inform the court when they made a conscious decision to end the marriage. Your conduct and interaction with one another are also taken into consideration by the court to help establish a date of separation.
Both tests are used by the court during this initial fact-finding stage. The separation date is so important that the court will do all it can to make sure it is as accurate as possible.