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2011: How do You Know What Your Date of Separation is and why can This be Important in Your San Diego Divorce or Legal Separation?

In San Diego, in a legal separation or divorce, the date of separation needs to be listed on the petition and summons or the response. In a divorce or legal separation, in San Diego Superior Court, the law will divide the assets and debts and the date of separation governs the time period from the date of marriage. This can be very important in your San Diego divorce or legal separation in many cases. As to spousal support, there are different rules for marriages which are less [or more] than ten years. As to retirement accounts, the date of separation will make when the accumulation of benefits will be divided and, as a time line rule is used in San Diego Superior Court to divide retirement accounts for divorces or legal separations, this can be very significant. As to debts, this can also be very important.

The test is one of subjective intent which can cause conflicting dates of separation by each spouse. The general test is one in which the parties are living separate and apart and have come to a “parting of the ways” and have no present intention of resuming marital relations and continuing in the marriage. Of course, one spouse can have this subjective intent while the other spouse does not. If there is a disagreement on the date of separation, in San Diego Superior Court for a legal separation or divorce, there is often a motion for a separate trial on this issue which bifurcates [separates] this issue from the others in the divorce or legal separation such as custody, visitation, child support, spousal support, division of debts, division of assets, attorney fees and others. The San Diego Superior Court Judge will take testimony and hear evidence and then make a decision as to what the date of separation is.

How does the Judge make the decision? Below are factors which Judges can consider.

  1. Moving out of the family residence.
  2. Filing for divorce or legal separation in San Diego Superior Court.
  3. Moving in with another person in a romantic relationship
  4. Living apart
  5. Not continuing with sexual relations with their spouse.
  6. Having sexual relations with a person other than their spouse.
  7. Whether the spouses are seeing a marriage counselor.
  8. Whether the spouses are attempting reconciliation.
  9. Whether the spouses are filing joint tax returns as married.
  10. Whether the spouses are maintaining joint bank accounts and joint credit cards.
  11. Whether the spouses are applying for loans or credit or making representations that they are still a married couple.
  12. Whether the spouses take vacations together.
  13. Whether the spouses are seeing each other frequently. Of course, “frequently” can be subject to interpretation.
  14. Whether mail is continuing to come to the same address for both spouses.
  15. Many other factors however the Judge will make a determination of the spouses date of separation on facts where the objective evidence will be weighed to determine whether a “reasonable person” who knows all of the facts would have truly believed in good faith that the spouses had come to a place where the marriage was not going to continue and there was no present intention to continue with the marriage.

If your case has a date of separation issue, please feel free to contact us for a confidential consultation.

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