Date of Separation and the Collaborative Divorce Process

There are so many financial implications to divorce including the date of separation. It is best to work with expert divorce attorneys and financial professional on your side.
There are so many financial implications to divorce including the date of separation. It is best to work with expert divorce attorneys and financial professional on your side.

There are so many financial implications to divorce including the date of separation. It is best to work with expert divorce attorneys and financial professional on your side.

by Frann Setzer, Esq.
MBA/Certified Family Law Specialist
The Law Office of Frann Setzer, APLC

In some dissolutions, the date that parties separate is a crucial issue. This is because by law, the marital ‘community’ ends on the day when parties separate. The end of the marital community means that income earned or possibly property purchased after that date might belong to only one person. The date that parties separate also determines the length of the marriage, which potentially affects the length of spousal support or whether or not spousal support can be terminated.

Attorney Frann Setzer

Family law attorney Frann Setzer

While each situation is different, the date of separation can be a very contentious issue in a divorce.

For example, let’s say that Ms. Smith is the primary wage earner for her family. She believes she and her husband separated in January 2015, when she packed most of her belongings and began to spend many nights at her friend’s house and on the sofa at her office. Ms. Smith did return to the marital home for dinner at least twice a month. The couple also decided not to tell very many people about their impending divorce. Mr. Smith works, but earns approximately 20% of Ms. Smith’s income. He believes that the parties separated in August 2015, when Ms. Smith finally rented an apartment.

In March 2015, Ms. Smith received approximately $500,000 in commissions from work that she did from January 2015 until March 2015. Since Ms. Smith believes the date of separation was January 2015, she also believes that the $500,000 is her separate property.

Conversely, given his belief that they separated in August 2015, Mr. Smith believes the $500,000 is community, making him entitled to $250,000. To complicate matters further, in March 2015, the parties would have been married for 10 years. Under California law, a marriage of 10 years or longer is considered ‘long term,’ which could greatly affect spousal support.

The facts of this particular situation are such that, a court could find for either party in terms of a date of separation. It could be January or August. One person ‘wins’ and one person ‘loses.’

Does this sound complicated? The above situation occurs more often than you might think. Many people do not wish to be a part of the adversarial world of litigation, where the outcome is all or nothing and where they risk making enemies of each other.

Enter the Collaborative Divorce process, where clients can meet with their attorneys, divorce coaches and their financial neutral and craft a solution to a very complicated situation that works for them. Their attorneys advise them of the law, their coaches get them to examine their true goals and the financial neutral can examine their needs. A global solution can be reached that takes into account property as well as support. Complexity is not the issue, the willingness of the parties to listen to each other and reach an equitable solution is the definitive factor.

Does ‘Separation’ Have to Mean Scorched Earth?

by Meredith Brown, Attorney, Brown and Brown

Most divorcing couples can agree on the day they were married but it is not uncommon for spouses to have very different ideas of when the marriage was “over.” Sometimes the dates expressed by spouses are years apart. How do couples set their date of separation? Why does it even matter?

canstockphoto24466347In California, property and debts accumulated by a married couple from their wedding day to their date of separation are considered “community property” to be divided equally.  Generally, once a couple has separated, their earnings, retirement plan contributions and employment benefits such as restricted stock and stock options, and their debts become separate property. When competing dates of separation vary significantly, division of sizable assets and debts may be placed at issue.

So how does the court determine the date on which a marriage was over? There are literally decades of cases that have sorted through a myriad of facts and circumstances in an effort to fix the date on which a particular couple separated. Courts have considered conveniences such as maintaining a joint account to pay bills or filing a joint tax return, or even the thoughtful act of sending a birthday card, as a sign that the marriage was not truly over. It is almost as though couples must suddenly turn a blind eye to one another and their history together as a prerequisite.

This summer, the California Supreme Court issued a ruling on the date of separation in Marriage of Davis. Davis holds that as a prerequisite to separation, spouses must live in two separate residences (with a footnote to the opinion leaving the door open for physical separation under the same roof, under limited circumstances). For many divorcing couples maintaining two separate residences during this difficult time is not economically feasible, practical or desirable, especially for couples with minor children.

When parties cannot agree on their date of separation a separate trial on that one issue may be necessary. The trial process is adversarial, emotionally draining, time-consuming and costly. Judges do the best they can but the court lacks resources to allow for a more compassionate approach that considers the personal and emotional needs of divorcing couples.

The Collaborative Divorce process is different. It is designed to respect your history together and help you design your post-marriage relationship. While you are fully informed about the law, you are not bound by the rules that restrict the court’s options. Your Collaborative Divorce team provides a confidential environment in which you and your spouse work together to create a settlement that meets your family’s needs.