Divorce Litigation: Why Date of Separation Matters

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Date of separation appears on the first page of the petition for dissolution of the marriage. Asserting the right date plays a big role from a legal point of view, since it helps establish the length of a marriage. This, in turn, determines several important rights.

Spousal support
Marriage entitles one to spousal support on what is loosely defined as “permanent basis.” Any marriage which is over ten years old is presumed to be a long term marriage. The length of permanent spousal support is based on at least 14 different factors ranging from health, the education levels of the parties to the discretion of the court. To illustrate the point, having been married for four years one might collect spousal support for two years because it is a short-term marriage. However, someone married for 11 years might collect spousal support for 11 years or even longer depending upon the circumstances of the parties.

Property Rights
Any asset or debt acquired during the marriage, except a gift or inheritance, is considered to be community property or community debt. Establishing the date of separation makes a difference in how assets are distributed and debts are divided.

Effective 2017, the date of separation is defined as “the date that a complete and final break in the marital relationship has occurred,” and it has to be evidenced by both the communication and conduct of the parties. The biggest change with current law is that it has placed a condition of “expression” or “communicating the intent” plus conduct on the part of the parties. In other words, silent treatment and inconsistent conduct with separation won’t work anymore. Previously, the parties could live under the same roof, sleep in separate rooms, but show up at social events together and later claim to have separated a long time ago. However, under current law, since they appear at social events together and did not verbally or in writing communicate intention to separate, alleging the date when they started sleeping separately won’t work.

In the context of property rights as discussed above, if the husband declares his intention to separate and starts sleeping in a separate bedroom or moves out even though a divorce has not been filed, and if he wins $5 million in a lottery, the jackpot would be considered his separate property.

Madan Ahluwalia, Esq. practices Family and Immigration Law in San Jose since 1995. He can be reached at (408) 416-3149.

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