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How is the DATE OF SEPARATION determined in California?
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Q. How is the date of separation determined?
A. This is a critically important question, that no non-family lawyer would have much of a clue about and so it is my honor to set forth an outline here of what you need to know - since the justice system will pretend you knew it anyway, when of course you otherwise did not!
Once spouses separate, all their earnings and everything that is acquired with those earnings are separate property of each spouse, respectively.
Physical separation doesn't exist just because one or even both spouses have started a divorce or legal separation proceeding. There is a box at page one of California Judicial Council Form FL-100 which sets forth each person's contentions regarding the date of separation but this is in no way determinative. It is true that often people agree on the date, but there are good reasons why they may not.
For instance, if your wife buys the winning lottery ticket a month after you and she separate, she would have an a fiduciary duty duty to disclose the winnings but they would nonetheless be her separate property. You can imagine hard hard you would argue for a separation date after the ticket was purchased and the entire case might then be about the correct date of separation. Or, consider a situation where a major liability is incurred on a given date; how that liability is assigned between the parties may have everything to do with whether it occurred before or after separation.
The issue also commonly arises when people reconcile after a physical separation for some fleeting period. Does this extend the original date of separation and create a new, later, date? Yes.
What if the spouses reside intwo households now, but continue to date, have intimate contact, or take vacations. Might this affect the date of separation? Absolutely. Or, what if they want to keep the fact of separation secret from family or friends, does this have an impact? Yes it may.
Spouses can stipulate to a date of separation, as is often the case. But when it matters to how property or debt is characterized or divided, or what the length of the marriage was for purposes of awarding spousal support, or where the parties' conduct has arguably been ambiguous, it becomes a contested issue that a family trial must resolve after taking testimony and receiving evidence.
Often it becomes a "bifurcated issue," meaning a separate mini-trial may occur since the court's findings may have a major impact on other issues and those issues cannot be resolved (or lawyers are limited in what advice they can safely give) until the DOS (date of separation) is known.
For more information on physical separation and its legal significance, click here.
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Posted By Thurman Arnold on
April 08, 2010 05:06 am |
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