Legal Separation and Date of Separation.
These terms are often misunderstood when it comes to divorce.
Date of Separation is the date that the community ended. The court will use this date for determining issues of reimbursement and when community property separate becomes separate property. Every divorce has a date of separation. The latest the date of separation will be is the date that the petition for divorce is filed. But it’s often sooner than this.
How do you know what your date of separation is?
The court uses a two-prong test. First, it’s the date that someone has communicated that the marriage is over; and second, that you are holding yourself out as no longer a couple.
Moving out does not create a date of separation on its own. You can be moved out and yet considered still a community by the court.
Nor does remaining in the same residence mean that you are not separated. You and your spouse can continue to share a household but be separated for purposes of the community no longer existing.
Why does this matter?
A lot of times it doesn’t. But it can.
In Marriage of Baragry (1975) The couple had been married for approximately 20 years and had two teenage children. The husband, a doctor, moved out of the family residence to live on his boat with his nurse/mistress. Approximately four years later he filed for a divorce and used the date he moved out, four years earlier, as the date of separation. This would mean that his earnings during that time would be his separate property. But the court ruled that the date of separation was actually the date he filed his petition for divorce. Why? Because although he was living with someone else he still came home every Sunday for a family dinner, he vacationed with his wife and children, and continued to send his wife birthday and holiday cards saying “I love you.” This was enough for the court to rule that he had not made it clear that they were no longer a couple and would be divorcing.
A clear example of how a date of separation can matter is if a spouse purchased a lottery ticket that wins a million dollars. If the ticket was purchased before date of separation, it’s to be divided 50/50 by the court. If it was purchased after a date of separation, then the purchaser keeps the entire amount as their separate property.
Date of separation is often confused with legal separation; but they refer to completely different ideas in family law.
Legal separation is exactly the same as a divorce except at the end, you are still legally married and unable to marry anyone else. Legal separation also requires a date of separation. In a legal separation you go through all the same steps as a divorce. You divide property, pay support, decide custody issues, etc. It’s exactly the same process.
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