There is a lot of discussion surrounding the importance of the date of separation and we’ll discuss a few here. However, keep in mind that the date of separation is not so important when you are going through an amicable California Divorce. I’ll explain below.
The date of separation you use is essentially the line in the sand between what is considered “Community Property” and what is considered “Separate Property”. In laymen’s terms (remember we are not attorneys) anything acquired before the date of marriage and after the date of separation is considered Separate property while anything you acquire during the marriage is considered Community property, with some exceptions such as inheritance and the sort. Here is a good article that goes into further detail.
The focus of the article is to explain how it works when your case is amicable. You see in contested divorce cases where everyone is fighting over everything, the date of separation can be very important for division of property and for such things as how long you may expect to pay for spousal support.
The date of separation, if your case is amicable, may not play such a big role in your divorce. Let me explain. If you and your spouse are in agreement to the terms of your divorce, the date of separation will not play much of a role. In contested cases, the parties use the date of separation to determine what is and what isn’t community property as well as what their values are.
This is still true in amicable divorce cases, but in some cases is just doesn’t matter.
For instance, I just got of the phone with a new client. They have only been married 2 years and per him, technically have been separated for more than a year (but not living apart – still living together) and the question to me was, “which date of separation should I use?” I replied by asking, “will the nature of your agreement change?” His answer was, “no”.
So what I told him is that since the nature of their agreement won’t change, why risk it and claim or state a date of separation of a year ago when it will not change what you are agreeing to. I told him all that would happen, possibly, is that the other spouse get’s upset and asks why he is using a date of separation from a year ago when they are still living together.
And by the way, still living together does not mean you cannot file for divorce or use a date of separation months in the past, even if still living together. Read this article here for more information about filing for divorce when still living together. Many of my clients are still living together at the outset of the divorce process.