Why is the date of separation important?
The date of separation is important in a divorce, because the court generally measures the Parties’ assets and debts from the date of the marriage to the date of separation. Sometimes the date of separation has little effect on the division of property, but other times, it plays a big role.
Typically, the date of separation becomes an issue when one spouse acquires wealth or debt around the alleged date of separation. Like business partners, spouses share the community debts and assets. Therefore, if during the marriage one spouse makes a lot of money or acquires a lot of debt, the Parties will generally share in that wealth or debt. The importance of the date of separation is best illustrated by example.
Let’s take a twist on a well-known California divorce case. You and your spouse have been arguing a lot and divorce is looming. There’s been talk of separation, but you’re still carrying on the marriage as usual and living comfortably in the marital home. At some point, your spouse decides to call it quits and moves out of the marital home with no intent of resuming the marriage. The date that this occurs is most likely your date of separation.
Your spouse claims that the date of separation is January 5th. You claim that the date of separation is January 9th. Now why does this matter? It’s only a four (4) day difference after all. It matters because on January 7th your spouse purchased a winning California lottery ticket. Therefore, if the date of separation was January 5th (before the lottery ticket was purchased), the community assets were worth $100,000. But, if the date of separation was January 9th (after the lottery ticket was purchased), the community assets were worth $100,000,000.
Absent a prenuptial agreement, lottery winnings during marriage are usually considered community property. Thus, if you had not separated by January 7th, when the ticket was purchased, you would likely be entitled to half the lottery winnings. However, if you and your spouse had separated by January 7th, then it is unlikely you would receive any of the winnings.
On the other hand, if your spouse took out a $1,000,000 loan on January 7th, you would most likely be arguing that the date of separation was January 5th, instead of January 9th. In this instance, the date of separation would be important for determining whether you are required to share in the $1,000,000 debt.
Determining the precise date of separation can be important to your case.