How to win your divorce-determining date of separation

Posted in Divorce.

The “Statistical Facts” part of the petition is often overlooked by people anxious to complete the Petition for Dissolution of Marriage as being relatively unimportant—nothing could be further from the truth.

In determining the correct date of marriage, the biggest challenge is usually poor memory. If you can’t remember when you were married, look at your marriage license. Some people who don’t want to be bothered with looking for their marriage license just guess, or put the month and year, which is acceptable.

Using the correct date of separation is extremely important for two reasons. First of all, in community property states like California, using the correct date of separation is important to make sure you get all the personal and real property you are entitled to, including but not limited to retirement benefits, real estate, bank accounts, personal property…even lottery winnings.

Secondly, if spousal support (alimony) is going to be an issue, using the correct date of separation is important to make sure you receive the spousal support you are entitled to. For example, in California, where spousal support is appropriate, the length of spousal support payments is determined, in part, by the length of the marriage. In marriages less than ten years in length, the general rule is that spousal support will be paid for one-half the length of the marriage. In marriages that lasted more than ten years, the courts will usually not put a termination date.

So how do you determine the date of separation? The best and clearest way to mark the date of separation is to file and serve a Petition for Dissolution of Marriage on your spouse, and they act like you are separated. There is no legal requirement you and you spouse not live in the same home, but if you are going to stay in the same home you need to act like roommates, not a married couple. That means different rooms, no intimacy, etc..

Another possible definition for date of separation is when one spouse communicates to the other a desire and intention to end the marriage, and then actions consistent with that communication. These actions include, but are not limited to, moving out of the master bedroom, the termination of intimacy, the separating of financial affairs, moving out of the home, getting a new girlfriend or boyfriend, moving in with a new partner, etc..

The weakest claim for date of separation arises when one party, without communicating a desire to end the marriage to the other spouse, moves out of the master bedroom, stops being intimate, etc.. Since many couples go through rocky times and then reconcile, the court will generally not consider the parties to have separated absent a communication, spoken (face-to-face, telephone, voice mail), or written (letter, text, e-mail).

It is always a good idea to consult with a family law attorney prior to filing documents with the court.

Robert Busch, Attorney at Law


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