Establishing the Date of Separation: Defining Your Rights, Obligations & Duties


Whether it be a petition for dissolution or a petition for legal separation, one of the most critical issues you must face from the onset is establishing the date of separation. I'll explain why; in California, community property is defined by the family code as follows:

"Except as otherwise provided by statute, all property, real or personal, wherever situated, [and debts] acquired by a married person during the marriage while domiciled in this state is community property."

This, of course, begs the question: When does the marriage end for purposes of defining community assets and liabilities?

Separation occurs when either party does not intend to resume the marriage and his or her actions evidence the end of the marriage. Of course, one of the clearest ways to establish the date of separation is to file for a petition for dissolution (also referred to as a divorce proceeding) or a petition for legal separation. However, even the filing of such petitions is not conclusive for establishing the date of separation.

For instance, it is not uncommon for parties to attend marital counseling after the filing of the petition for dissolution. Such conduct would rebut the presumption of a permanent intent to part with no intent to resume the marriage, and thereby toll or postpone the date of separation. After the date of separation, all assets and liabilities acquired by a spouse are deemed "separate property" and not subject to division at the time of dissolution. Simply stated, community property rights (and obligations) stop accruing once the parties have separated.

In addition to accruing an interest in property and debts acquired during the marriage, spousal support rights are impacted by the date of separation because Family Code section 4336 provides:

"For the purpose of retaining jurisdiction, there is a presumption affecting the burden of producing evidence that a marriage of 10 years or more, from the date of marriage to the date of separation, is a marriage of long duration…."

Thus, if a marriage is approaching ten years in duration, the date of separation is critical in defining the rights and obligations of both the supported and supporting spouse.

Contact a Family Law Attorney in Santa Clarita

Our law office is located in Santa Clarita, serving communities in Saugus, Canyon Country, Valencia, Newhall, and more. If you have any questions regarding divorce, spousal support, child support, questions about modifying a child support order, or if you need assistance in trying to establish or challenge the date of separation, please call family law attorney Eric Martinelli with the Martinelli Law Group for a free consultation.