Written By: Casey J. Marticorena, Esq., Partner at The Law Offices of Donald P. Schweitzer, APC; and Lucy Vartanian, Esq., Associate at The Law Offices of Donald P. Schweitzer, APC
The date of separation can be a complete game changer in your divorce proceedings. In fact, the date of separation is so significant that it can take a life of its own, requiring an early and separate trial before the remaining issues are resolved.
All earnings and income accumulated after the date of separation are the separate property of the earning spouse. In other words, if you finally land that lucrative job or earn a long-awaited raise after separation, that money is considered your sole and separate property, and your spouse won't ever see a dollar of it. Of course, this also means that all liabilities and obligations incurred after separation are yours too. So if you're contemplating maxing out your credit cards in a vengeful fit following your separation, you may want to think twice.
Determining the date of separation is an art. The California Family Code says that the date of separation is when the parties are "living separate and apart from [each other]." However, physical separation is not required nor is it determinative of separation. In fact, it is possible to be separated and still be living under the same roof!
Take, for example, a husband who moved out of the house three years ago but continuously dined out with his wife, paid the bills, filed joint tax returns, sent her flowers and a birthday card and even had his laundry done by the wife. A judge could reasonably conclude that the parties were still together, despite the separate residences. Now, compare this to a scenario involving spouses residing under the same roof that, for the past year, dined separately, paid separate bills and did not attend any social functions together. A court would likely conclude they separated one year ago.
Determining the date of separation requires an analysis of the parties' conduct towards each other, not just isolated facts such as the date one spouse moved out. It is a fact-based analysis that does not, by any means, have a black or white definition. Before committing to a date of separation, make sure you understand how to determine the date of separation along with its impact on your legal rights. It's imperative that you have an experienced family law attorney on your side to analyze the facts of your case and your date of separation.