Divorce & Separation


DL-4California uses the date of separation as the essential date for determining property interests; property acquired by a spouse after the date of separation is considered to be that spouse’s separate property, while property acquired after the date of marriage, and before the date of separation is community property.

On your first visit with an attorney, he or she will most likely ask about your date of separation. This date may or may not be that easy to determine, because it’s not always clear when exactly it “happened.” It is not uncommon for other spouse to disagree about the separation date.

California uses the date of separation as the essential date for determining property interests.

If the date of separation is unclear or the parties disagree, the court will look at two different tests to determine the separation date: an objective test and a subjective test.

Objective Test

To answer the objective test, the court will determine when you started living apart from each other. That usually happens when one of you moves out of the family home. In today’s tough economic times, however, that is no longer an option for some, because it’s often too expensive to maintain two separate residences. Even if spouses are still living in the same home, there are ways to ensure physical separation.

As the California Courts put it, “Our conclusion does not necessarily rule out the possibility of some spouses living apart physically while still occupying the same dwelling. In such cases, however, the evidence would need to demonstrate unambiguous, objectively ascertainable conduct amounting to a physical separation under the same roof.”

Subjective Test

Physical separation is not enough to show that you are separated. Some people are living separate from each other for extended periods, but do not intend to end their marriage. That intent is the subjective part the court will consider.

At what point did one or both of you think that the marriage was over? When did you decide you no longer wanted to stay married? The court will look at your conduct toward each other to see when the marriage “ended.”

The combination of findings from each of these tests will be used by the court to establish the date of separation. This date will then be used going forward throughout the divorce process for the purpose of property division.

This is especially true when one, or both spouses continue to earn retirement benefits, or continue to contribute to their retirement accounts after the date of separation.

Some retirements, such retirement benefits earned during military service, divide the pension of the employed spouse or service member by the time rule, which is a fraction where the numerator is the length of marriage, and the denominator is the length of employment.  For example, if the length of marriage is 10 years, that is the numerator.  If the length of service is twenty years, that is the denominator.  The fraction would then be 10/20 or 50%.  That 50% is then divided equally as that is the community portion of the retirement.  One spouse would therefore receive 75%., and the other spouse would receive 25%.

Public, federal, and state retirement systems are dramatically different, and most of the time, an attorney is retained who specializes in preparing what is known as a QDRO, or Qualified Domestic Relations Order.  The analyst for that specific retirement system then using the date of marriage, the date of separation, and length of employment, determines the community and separate portion of that federal or state retirement.

The date of separation also impacts the division of all debts incurred during the existence of the marriage.  In some occasions, one spouse will purposefully, for example, increase credit cards balances in contemplation of filing a dissolution, in the hopes that all of the debt is then divided equally as the debt was incurred prior to the date of separation.  In these cases, an experienced attorney can obtain court orders stopping the debts from increasing.

It is important to retain an attorney if the date of separation is an issue in the various scenarios discussed above.  These scenarios are only a few examples.  The determination  will also impact the division of the amount of retirement that each spouse earned during the marriage, regardless of who is the actual employed spouse.  An experienced attorney can anticipate these events, and therefore protect your assets and the debts you will have to divide as you reach the finality of your dissolution.