Date of Separation – It’s a big deal. But it’s also a little subjective.

By Matthew Moore, CFLS

California is a community property state. That means, generally, that everything acquired during marriage is community property, and such property (and debt) is divided 50/50 at divorce. Simple enough. And we’re all pretty clear on when the marriage begins. (If you’re not clear on when your marriage began, you’re in the right place.) But when does it end? Divorces always take at least six months, and often more like 18-24 months. Are your earnings still community property after you decide to get divorced, but before the judgment is entered? What if you file for divorce and your spouse responds by charging a trip to Fiji on the AmEx, are you on the hook for that debt? 

What if you file for divorce and your spouse responds by charging a trip to Fiji on the AmEx, are you on the hook for that debt? 

No. This is where Date of Separation affects your rights. Under current law, this is the date upon which one spouse determines there has been a “complete and final break in the marital relationship” and they follow up that determination by expressing their intent to end the marriage, and the act consistently with that intent. (Family Code § 70.)  Generally all income earned and debt incurred after the Date of Separation are separate property

So, the Date of Separation is a big deal. If you go on a spending spree on Monday and your Date of Separation is Tuesday, the stuff you bought or the debt you incurred is community property to be divided in the divorce. But if your spouse then flies off to Fiji on the AmEx on Wednesday, that debt is likely their separate property obligation.  

It’s a big deal. But it’s also a little subjective.

It’s a big deal. But it’s also a little subjective. No formal method of communication is required to “express to the other spouse the intent to end the marriage.” A simple “It’s over” could do it. Or a text message. We had one case in which the parties ultimately agreed that their Date of Separation was the date upon which she unfriended him on Facebook. (Since they agreed on the Date of Separation, the Facebook unfriending Date of Separation did not face judicial scrutiny, but we like to think it would have held up if it had.)  

Does it matter?

It should be no surprise that Date of Separation disputes arise when significant transactions occur in the waning days of marriage. They also arise in circumstances where the parties have trouble staying away from each other. California law favors marriage and it favors reconciliation. (Family Code §§ 1839, 2334.) So it is possible – common actually – for parties to have a legitimate date of separation, but then reconcile by acting married: Going on a trip with the kids, continuing in marriage counseling, sleeping together, (re-friending on Facebook?). Any of these activities could nullify a Date of Separation, requiring a new, later one. 

Ultimately, when a spouse files a Petition for Dissolution of Marriage (or Domestic Partnership), they will list the date that they believe is the Date of Separation. And when the other spouse files their Response and Request for Dissolution of Marriage (or Domestic Partnership), they will report their own version of the Date of Separation. If the dates are not the same, then we have something to discuss in mediation – or an important question for the judge. And that credit card bill for the Fiji Trip could be at stake. 

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