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What Establishes the Date of Separation

On Behalf of | Aug 18, 2019 | Divorce

Why is the date of separation important in a Carlsbad divorce and what actually establishes the date of separation in your divorce?

California enacted a new updated law a few years ago to clarify what actually establishes the date of separation in a divorce.  Prior to that date, California law in essence required the parties to physically move apart from one another. The law literally said “living separate and apart”-a phrase which California Courts and Judges interpreted to mean “living apart from one another in separate residences.”

This simply didn’t reflect the realities of divorce in California and actually could create imbalance between the parties.

The financial challenges associated with divorce are burdensome enough for many couples. The added expense of separating into two households before the divorce was completed was simply too much for many couples. The new law completely removes the language in question which has caused such bitter debate over the years. The new law refers to the phrase “after the date of separation” to establish when a spouse’s earnings, investments and income transition from “community property” to “separate property.”

It is important for the date of separation to legally exist, as this is the point where the spouses can begin to accumulate their own “separate” property and financial resources for the future. While the initial ATROs (temporary restraining orders issued with the summons) prohibit both spouses from opening separate accounts or transferring assets, the financial calculations of what is considered community property versus those funds that will be the separate assets of each spouse begin on the new understanding of the date of separation.

Present law establishes two tests:
1. a spouse has expressed his or her intent to end the marriage to the other spouse, and
2) the conduct of the spouse is consistent with his or her intent to end the marriage.

The best and clearest evidence of what establishes the date of separation is the actual filing of divorce papers.  Outside of this, our Carlsbad Courts will review all “relevant evidence” when establishing the date of separation.

This is why it is important to work with the experienced and proven divorce and Certified Family Law Specialists at Burke & Domercq.  Our clients value our decades of service in Carlsbad and Carlsbad divorce cases, as well as our responsiveness and positive approach to working through the divorce process.

We invite you to contact us or call 760-389-3927 to schedule a meeting with one of our attorneys.