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Does the "Date of Separation" Matter?

You’re getting divorced, but does the “date of separation” really matter? Does it need to be an exact date? How is it used? Below we take a closer look at what the “date of separation” means and if it’s crucial that you have an exact day.

Date of Separation

When it comes to a courts’ consideration, the date of separation becomes important for determining property interests. As much as you might want the court to “care” about the date, it really just comes down to determining community and separate property. any property that is acquired by a spouse after the separation date is considered that spouse’s separate property, in addition to any property that was listed as separate property in the prenuptial agreement (if there was one). Property acquired during the marriage (and before the date of separation) is considered community property.

Unsure of the Date of Separation

You might not be sure of the exact date that you separated. Chances are, it wasn’t a rash decision or a date you can point to, like a birthday or a holiday. Most likely there was a lot of discussion and deciding that went into the final decision to separate. Additionally, your spouse might disagree about the day. When the date of separation is unclear, a court will use different tests to help determine the separation date.

Objective and Subjective Test to Determine Date of Separation

Objective Test: the court determines when you and your spouse started living apart from each other, or when one of you moved out of the family home. Sometimes there is no way to ensure physical separation, such as in instances when it’s too expensive to financially maintain separate residences. California Courts states: “Our conclusion does not necessarily rule out the possibility of some spouses living apart physically while still occupying the same dwelling. In such cases, however, the evidence would need to demonstrate unambiguous, objectively ascertainable conduct amounting to a physical separation under the same roof.”

Subjective Test: the court determines when you or your spouse think the marriage was over, or when you both decided you no longer wanted to be married to each other. For this “test,” the court looks at your conduct toward each other to determine the end of the marriage.

Once a court determines this date, it will be used for the divorce process and any property division that is required to reach a divorce settlement.

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