It is a common misconception that date of separation and legal separation are interchangeable terms, when in fact, these terms are as different from one another as a start is to a finish. Although legal action can take time, knowing how to start and where to go is the crucial first step in bringing about your desired outcome. Whether or not this desired outcome is a divorce or a legal separation, the first step is always to establish a date of separation. In California, the date of separation is defined by statute as, “the date that a complete and final break in the marital relationship has occurred.” On the other hand, a legal separation can be roughly thought of as a divorce in all but name—assets are divided, child custody is ordered, and support is fixed. However, upon conclusion of the legal separation action, the parties are not free to remarry, because they are still legally married, although legally separated.
To establish a date of separation, the court will consider two things: (1) whether one spouse has expressed an intent to end the marriage, and (2) whether there is evidence of conduct that is consistent with the spouse’s intent to end the marriage. See, CAL. FAM. CODE 70(a). The significance of the date of separation is that from that date forward that which one spouse earns or acquires (or incurs in debt) belongs entirely to that spouse. Upon separation, it is wise for a spouse to open a personal bank account in which to deposit that spouse’s separate property income. That action is one factor of a number of different factors that the court might consider as “conduct that is consistent with the spouse’s intent to end the marriage.” Other actions that the court might consider as evidence of conduct that is consistent with ending the marriage are the termination of economic, emotional, sexual, and social ties. Any one of these factors alone, or in combination with other factors, may provide the court with enough evidence of the date of separation. However, it is important to note that in many marriages, the parties stop havingsexual relations without having any intent to separate. Sex does not a marriage make. Sleeping in separate rooms may in some instances evidence a final break in the marital relationship, but in other instances, such as when one spouse sleeps in another room because the other spouse snores, it may not. If the parties customarily dated during their marriage, but then stopped that practice, it might well support a contention (though perhaps not establish it by that change in custom alone) that the parties’ marriage is broken beyond repair. But, if the parties never dated, that fact would not be indicative of a final break in their marriage because that is the way it was since the day they married.
The date of separation not only establishes the beginning of a spouse’s separate estate, it also marks the end of the community estate. Therefore, it is important to record the state of the community’s assets and debts as of the date of separation. Make a detailed spreadsheet of the community’s finances, including bank accounts, vehicles, investments, credit and charge cards, home loans, and the like. Document your work with copies of statements and other records;bank, mortgage, and credit card statements will help establish the community obligations as of
the date of separation. Any money earned or spent before this date—excluding a few things—is shared by both you and your spouse. Income earned from community assets (such as interest paid on a community bank account) belongs to the community, even if it was earned or paid after the date of separation.
A legal separation proceeds in the same fashion as a divorce. Indeed, the form used for both legal separation and divorce is exactly the same; the only difference is that different boxes are checked on the petition requesting different relief. It is equally important to determine the date of separation in a legal separation proceeding as in a divorce. However, at the conclusion of the case, a Judgment of Legal Separation is entered. That Judgment of Legal Separation does not return the parties to the status of single persons–it does not dissolve the marriage. A
Judgment of Dissolution of Marriage will restore the parties to the status of single people.Neither type of judgment is any less permanent than the other. If a Judgment of Legal Separation is entered, and thereafter a party wishes to remarry, that party would then have to file a Petition for Dissolution of Marriage, serve it on their spouse, and proceed with divorce proceeding until they obtained a Judgment of Dissolution of Marriage which restores the status
of the parties to that of single persons.
The terms date of separation and a legal separation are two very different things. It is not true to say that you are legally separated from your spouse after simply establishing a date of separation. To become legally separated—as with divorce—you must complete a process which consumes significant time, resources, and process with the court to formally end the relationship. In contrast, establishing the date of separation can happen very quickly. Knowing the difference between the two, however, gives you both a starting point and a destination to find the resolution
that you seek.