California uses the date of separation as the essential date for determining property interests; property acquired by a spouse after the date of separation is considered to be that spouse’s separate property, while property acquired before the date of separation is community property.
On your first visit with an attorney, he or she will most likely ask about your date of separation. This date may or may not be that easy to determine, because it’s not always clear when exactly it “happened.” Commonly, the other spouse will disagree about the separation date.
California uses the date of separation as the essential date for determining property interests.
If the date of separation is unclear or the parties disagree, the court will look at two different tests to determine the separation date: an objective test and a subjective test.
To answer the objective test, the court will determine when you started living apart from each other. That usually happens when one of you moves out of the family home. In today’s tough economic times, however, that is no longer an option for some, because it’s often too expensive to maintain two separate residences. Even if spouses are still living in the same home, there are ways to ensure physical separation.
As the California Courts put it, “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.”
Physical separation is not enough to show that you are separated. Some people are living separate from each other for extended periods, but do not intend to end their marriage. That intent is the subjective part the court will consider.
At what point did one or both of you think that the marriage was over? When did you decide you no longer wanted to stay married? The court will look at your conduct toward each other to see when the marriage “ended.”
The combination of findings from each of these tests will be used by the court to establish the date of separation. This date will then be used going forward throughout the divorce process for the purpose of property division.