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Separation

In a divorce in California, there are many issues that depend on the date of separation. And in some cases, filing for a legal separation may be a better (at least initial) approach than to file for divorce.

At San Diego Divorce Attorney, we understand the issues related to both legal separation and the determination of the date of separation under California law. We can help you make an informed decision on what to do next and help you understand the legal ramifications of both kinds of separation.

To learn more, or for a free legal consultation, do not hesitate to contact us today by calling 858-529-5150.

What Is the "Date of Separation" and Why Is It Important?

In California, the "date of separation" is the date used to determine the status of property as community or separate, in many situations, in a divorce proceeding. This could greatly impact the amount of community property and thus the final, overall property division settlement of the divorce.

Property and debts acquired during the marriage are community property, while property/debt acquired before the marriage OR AFTER THE DATE OF SEPARATION are separate.

That's why one of the very first questions your divorce attorney is going to ask you is when the date of separation occurred. And it's not uncommon for there to be disagreement over the exact date on this matter - and over resultant differences in community/separate property or debt statuses.

Let's look at a few of examples where the date of separation would be significant (and possibly in dispute). First, maybe one spouse got a big bonus at work just before or just after the date of separation. Second, consider if one spouse racks up a big debt just before/after the separation date. Finally, consider if a major purchase is made just after the date of separation (and maybe there's a dispute over whether it was bought with separate or community money.)

Thus, the date of separation (the day on which one spouse decided to end the marriage and demonstrated that intention in a clear way to the other spouse) is of great significance in California. 

And don't confuse "date of separation" with "legal separation." The former term is the date on which the marriage broke up (but not legally), while the latter term is a legally separated status short of actual divorce.

Determining the Date of Separation

The date of separation happens when either spouse decides to end the marriage and by his/her actions indicates that fact to the other spouse.

But there are no single, automatic facts and events that determine the date of separation. It is a subjective state that is ultimately in view here - but, that said, it is only by objective evidence that the subjective state can be established.

The Objective Test

The court will use both and objective and subjective "test" to determine the date of separation. Typically, the objective test is the day one spouse moved out of the family home.

However, due to the expensive nature of getting one's own place to live, there are exceptional cases where an objective, physical separation can take place without either spouse immediately moving out. It might be moving to different rooms and avoiding each other, for example.

The Subjective Test

Physical separation is not automatically enough to determine the date of separation under California law.

There are cases where spouses were already living physically separated much of the time, even for months on end. (This is true sometimes, for example, if a spouse who is a US Armed Forces member is stationed overseas or out of state and the other spouse has not moved there yet.)

It could even be that someone moved out but didn't yet intend to end the marriage, though that would be more likely to end up disputed by the other spouse.

If the date of separation occurred while the spouses were already physically separated, the court will look at the actions and relations of the two parties to determine the official date of separation.

Disagreement Over the Date of Separation

Both the objective and subjective factors will be taken into account by the court, but everything has to be objectively proved. But both parties must indicate a date of separation on their paperwork (the petition and response). If these two dates do not agree, things have to be determined by the court.

If there is no significant financial impact of the difference in dates indicated by each spouse, determining the date of separation will be a small matter, hardly worth contesting. But sometimes, it can be very significant. In that case, we can file a motion to have the court hold a trial to determine the date.

This would be a small "mini" trial, and wouldn't last long. But if the whole case is held up over the date or if property/debt division of significance rides on the decision, you'll want the best possible representation at the trial to determine the date of separation.

Legal Separation

Another kind of separation issue is when a spouse seeks a legal separation instead of a divorce. There are a number of reasons for doing this. 

It may be the spouse seeking the legal separation doesn't want to end the marriage or isn't yet sure if he/she wants to end it. OR, a legal separation may be a first step taken with divorce as the ultimate goal in view. That's because it can become easier to finalize a divorce if a legal separation has already been declared.

Additionally, if the divorce process would take too long, and one wants to get at least some benefits like child support and custody without delay, a legal separation might be sought.

Requirements for a Legal Separation

The separation that took place on the date of separation, when one spouse decided to end the marriage and made that clear to the other spouse, does not automatically create a legal separation. The proper paperwork has to be filed at your county Superior Court and the process gone through step by step.

Also, you cannot get a legal separation without the consent of your spouse. If he/she refuses that consent, you would have to file divorce to create any kind of legal break with your spouse. If he/she simply avoids sending in a response to the petition for legal separation, it can go forward without his/her consent since he/she refused to participate in the process. But if he/she responds and refuses, there is no way to get a legal separation.

No special grounds are required for a legal separation since California is a no-fault divorce state and applies that same principle to legal separations.

The same rules, like being a California resident for 6 months or more and living in the county where you file for 3 months or more, apply to legal separations as much as to divorces. And the filing process is basically the same, except you check the legal separation box on the form instead of the divorce box.

The results of course, are very different. Being legally separated is not the same as being divorced. Neither of you can remarry since you are still married, and you can't get spousal support (alimony) since you're not divorced. 

However, a legal separation decree works like a divorce decree in other ways besides alimony. It can include an agreed upon settlement for dividing property and for resolving child custody, visitation, and support issues. But a legal separation, unlike a divorce, will also allow you to stay on your spouse's health insurance policy since you are still his/her spouse (unless your health insurance policy disallows this - so you would need to check.)

Conversion of Legal Separation to Divorce

In California, many people will begin with a legal separation and then end up filing for divorce. For this reason, the state allows the conversion of a legal separation into a divorce, in order to simplify the process and avoid a lot of repeat, identical paperwork and negotiations.

The legal separation has to be finalized, however, before you can move to convert it. And it does not have to be the same spouse who files for the separation who files to convert it to a divorce.

There is no waiting period to file for a legal separation, like the 6-month state and 3-month county residency requirements for filing for a divorce in California. Thus, if you don't meet the residency requirements yet, you can file immediately for a separation to get things moving and then convert over to a divorce once the residency times are met and the separation is finalized.

So, there are situations where it would take longer to start with a legal separation and convert later to a divorce, but there are also situations where it takes less time to do it that way.

When you file for the conversion, it will take some additional paperwork, but not everything has to be duplicated.

The Separation Agreement

When you and your spouse intend to get a legal separation (remember, this can only be done anyway if both spouses agree to it), you can form a "separation agreement" even before the legal separation is finalized or even filed.

This agreement can be legally binding, provided it doesn't violate any state laws. And yet, it can address all the issues involved in the legal separation, many of them being the same as in a divorce.

Realize that spousal support is often included in a separation agreement, and that the agreement later can become a court order and be legally binding. But you can't force spousal support if you don't get a divorce and you can't force a legal separation, much less specific elements of the separation agreement. (It truly has to be an "agreement.")

That said, here are some of the most common elements included in a separation agreement associated with a legal separation in California:

  1. Who will have custody of any children involved and who will have visitation rights? A detailed "parenting time" schedule can be included.
  2. Who will pay child support and how much? There are guidelines for this, but you can arrive at a plan on your own and get it approved by the court if it meets basic standards.
  3. Will one spouse receive alimony from the other during the separation? If so, how much and for how long?
  4. Will any or all of the marital property be divided? How will it be divided? Will some of it be liquidated first?
  5. Will any debts be divided and if so how?
  6. How will rent, mortgage payments, electric bills, tax bills, healthcare expenses, and basic living expenses be handled?
  7. How will bank, investment, insurance, and other accounts be handled?

Should We Form a Separation Agreement on Our Own?

It's true that you can legally figure out a separation agreement with your spouse without a lawyer, but there are a number of reasons why it's good to get some legal help for this.

First, you need an agreement that's going to be approved of by the court, or else you have start all over again and formulate a new, or "revised" agreement.

Second, it can be difficult to have this kind of in-depth financial discussion (which touches on some touchy points, to say the least) with someone you are already at odds with. You don't need an "explosive" and "emotionally out of control" meeting as you try to hammer out a separation agreement with your spouse.

Third, there are a lot of financial details involved and a good deal of expertise is needed to write a full, orderly separation agreement that doesn't overlook important areas.

Thus, a family law attorney can help you move through the drafting of a separation agreement more quickly and with fewer "bumps" along the way - and ensure you reach an agreement that will be legally permissible.

Contact Us Today for Assistance

At San Diego Divorce Attorney, we have full familiarity and deep experience with how the date of separation impacts a California divorce or legal separation case. And we also understand all of the detailed ways in which filing for divorce versus filing for legal separation can affect matters.

We have provided top-tier legal advice and representation to numerous others in San Diego and Southern California; and we can do the same for you.

Contact us today by calling 858-529-5150, for a free, no-obligation consultation and for answers to all of your questions on family law issues. We look forward to hearing from you!

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