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Why Does the Date of Separation Matter in a Carlsbad Divorce?

On Behalf of | Sep 18, 2019 | Divorce

Why does the Date Of Separation or DOS matter in a Carlsbad divorce?  California divorce law uses the date of separation as an important “line” when dividing community property.  The central asset and debt issues in a divorce are:

  • When did the parties become a “community”
  • When did the parties cease to be a “community” and become separate parties in the in eyes of the law
  • What assets and debts are considered to be “community property”
  • What assets and debts are the “separate property” of one of the former spouses?

Why does the Date Of Separation or DOS matter in a Carlsbad divorce?  The DOS is important for two reasons:

1. Couples married longer than 10 years face different property division and spousal support calculations than shorter term marriages
2. Property acquired after the date of separation may be considered “separate property” and would not therefore be divided as a marital or community asset.

Establishing the date of separation has become much easier in recent years.   In the past, establishing the DOS might have required one of the parties to physically move out.  This placed obvious additional financial burdens on the situation, and actually placed the party who moved out in a less advantageous position from the legal perspective of the divorce.

In essence, the recent ruling establishes that the date of separation or DOS as the day one of the former spouses makes it clear they no longer intend to continue in the marriage.  There are two legal “tests” to establish the date of separation.  The first is the “objective test” and the second test is the “subjective test.”  The most obvious evidence for establishing the DOS is the filing of the divorce petition itself or the date one of the parties moved out of the family residence.

However, in some cases it may be important to establish the DOS several weeks or months prior to actually filing for a divorce.  Moving out may not be in your best legal interests.  This may require a notarized written notice with proof of service.

If you are approaching the 10 year mark in your marriage the Date Of Separation or DOS could result in a substantial amount of money for you either way.  This may also be important if an inheritance is in your future, or if you intend to start a business.  Now that you know a little more about what makes the Date Of Separation or DOS matter in a Carlsbad divorce you probably have a lot of questions.

It is important to seek the sound advice and counsel of the Certified Family Law Specialists at Burke & Domercq to gain a thorough understanding of the law in these cases and the best strategy to accomplish your goals while protecting your financial interests.  We invite you to review the strong recommendations of our clients and contact Burke & Domercq or call 760-389-3927 to learn more or schedule an appointment.