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Why the Date of Separation Matters in Your Divorce

For many people, the most important date involved in their divorce is the day it’s finalized. However, that’s far from the only day that matters. For example, your date of separation can significantly impact how your assets are divided in your divorce decree. 

The separation date is less official than the finalization day, though, so it can be harder to define. You’ll need to define it to ensure your final settlement and decree are fair. Keep reading to learn what the date of separation is, why it matters for California divorces, and how to ensure it is determined correctly. 

What Is the Date of Separation?

The date of separation is just what it sounds like: it is the day that you and your spouse officially decided to end your relationship and begin living separately. If you do not tell your partner you intend to divorce until you file, your separation date will be the day they receive the papers.

However, the day could be significantly earlier if you decide to separate before filing. For example, if you tell your partner you want to end your marriage and start living separately but don’t file for divorce for another three months, your separation date will still be the day you broke up. 

Impact of the Date of Separation on Divorce

The day you decide to end your marriage matters because it impacts asset division. A couple first starts sharing assets on the day they get married. Everything they acquire after that date is considered marital property, which is eligible for division during a divorce unless a prenuptial or postnuptial agreement states otherwise. This accumulation of marital property continues until the date of separation. This becomes the hard stop when you and your partner stop acquiring marital assets. Future earnings become your sole property.

The specific end date of your relationship matters because California is a community property state. In other states with equitable division laws, courts can divide property based on what they think is fair, not necessarily what is equal. In contrast, California requires divorcing spouses to divide their community property equally unless a contract provides otherwise. Without well-defined end dates for the relationship, it can be challenging to determine the actual value of the marital estate and find a 50/50 split. 

The exact day you decide to divorce can significantly affect your asset division. Most commonly, this affects how a couple’s income is divided. Only income received by the date of separation is eligible for division. Paychecks received on or before that day will be considered community property, and wages received after will be the sole property of the person who earned them. 

This also applies to things like work bonuses. If an employee receives a holiday bonus after separating from their spouse, that bonus may not be considered communal property. The same goes for overtime, raises, stock options, and lottery winnings.

However, some types of gains are not affected by your separation date, especially capital gains. If a joint investment portfolio increases in value after you decide to separate, that increase is considered your combined property and must be divided equally. The value comes from community property, so it remains community property. The same goes for an increase in the value of your home, real estate, or other joint assets. 

Determining the Separation Date for Your Split

Because of the potential impact on your divorce, it’s critical to accurately determine or record the date you separated. Here’s how to ensure your split is handled appropriately and your assets can be split accurately.  

Document the Date 

If you haven’t officially decided to divorce yet, make sure you record the day you inform your spouse that you want to end your marriage. This should be more than asking for a divorce in anger, though. It should clearly communicate that you intend to end your relationship and that you’ll be filing for a divorce. You may want to record or write down the conversation to be completely clear. 

Start Living Separately

Beyond stating that you want a divorce, you need to start living separately. Moving out of your joint home is adequate evidence that you no longer intend to be in a relationship. Even if you can’t move out, you can still live as though you are no longer married. Try sleeping in different rooms, stop performing activities together as partners, and keep interaction to a minimum. This demonstrates that your request for a divorce was not just idle talk. 

Collect Evidence

If you have already filed for divorce, you may be able to pinpoint the day by rereading old messages, texts, or emails. This is time-stamped proof that you had the conversation and what it covered. Similarly, you can collect evidence like the lease on your new apartment or sworn statements from family and friends that you stopped acting as a couple on a specific day. You can present these items during the hearing to divide your assets to support your claim. 

Optimize Your Divorce With Expert Legal Help

The day your marriage ends may officially be the day your divorce is finalized, but that’s not when your relationship ends. That occurs when you inform your spouse you intend to file for divorce or start living separately. Choosing your date of separation carefully can help you optimize the asset division process and ensure you receive your fair share of community property. 

If you have questions or concerns about how your separation date might affect your divorce, consult with the expert attorneys at Kaspar & Lugay, LLP. Our qualified lawyers understand how California separation dates and community property laws interact, so we can assist you with securing the best possible outcome from your split. Schedule your consultation today to learn more.