Deciding how your belongings are divided in your divorce depends on whether the assets are community or separate property. Anything determined to be community property is split equally between you and your spouse. In contrast, separate property is kept by the spouse who acquired it.
So how do you know whether your stuff is in the community or separate property group? The answer depends on when you obtained it. Community property is anything acquired or earned during the marriage. Separate property is anything acquired before the marriage and after the date of separation.
In most situations, determining the separation date is clear-cut. However, cases exist where the spouses have two very different ideas about when they separated. When this happens, the court must consider various factors to decide when the couple separated and what is and isn’t divided in the divorce.
Dividing Property in a Divorce
Property consists of anything you earned, owed, or acquired. It can include items such as houses, cars, jewelry, retirement accounts, and debts. If these items are considered community property, they belong to you and your spouse. Upon your divorce, if you and your spouse disagree on how to divvy them up, the court will decide for you and divide everything equally.
If your possessions or debts are separate property, you get to keep them. The court has no say in who gets them. They are yours.
To determine whether something is community or separate property, you must know a couple of dates. First, the date you were married. Anything acquired before this date is separate property. Anything acquired after is community property. That is until the second important date: your separation date.
After you and your spouse separate, your earnings, debts, and other items of value are yours. You can see why the separation date is important. It helps determine what you get to keep or what you must split with your spouse.
Note that your separation date is not the same as a date of legal separation, which is when a court makes orders concerning several issues. Rather, the separation date is when you or your spouse let the other know that you want to end your marital relationship. You do not have to be legally separated for your assets to be considered separate property.
When Is Our Separation Date?
Determining your separation date can get quite complicated. You and your spouse might have different opinions about when it is. For instance, your spouse might claim that you separated in 2020. However, you hold that the separation was official in 2021.
Discrepancies of a few years, or even a few months, can have significant implications on property division. To illustrate, let’s return to the hypothetical separation dates in the previous paragraph. If your spouse maintains that you separated in 2020, anything either of you earned or acquired from then on is separate property. Your spouse might have obtained quite a bit of assets you wouldn’t be entitled to receive in the divorce.
Settling the separation date dispute requires turning to California Family Code § 70. The law provides that a couple is separated when there is a “complete and final break of the marital relationship.”
Both of the following elements must be present for a couple to be considered separated:
- One spouse expressed an intent to end the marriage and
- The spouse’s conduct suggested that the marriage was over.
The law also states that the court must consider all factors to determine a couple’s separation date.
These factors can include, but are not limited to:
- The living situation. Did one spouse move out of the house?
- The financial situation. Is the couple still comingling finances and/or filing taxes jointly?
- The couple’s outward appearance. Would the couple’s behavior suggest to society at large that they are no longer in a relationship?
Once your separation date is determined, money earned, assets acquired, debts accrued are yours and yours alone. They will not be divided as community property.
Contact Claery & Hammond, LLP
Your separation date is important for determining what’s community and what’s separate property. In other words, it’s essential for deciding who gets what. If you and your spouse disagree about your separation date, the court will make the call. Because a judge considers all relevant evidence, every detail concerning the break in your marital relationship is vital.
Our team examines the facts of the cases we handle to facilitate a fair process. Contact our San Diego lawyers at (619) 567-6704.