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?
In 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.
