Legal Question in Family Law in California

In California: My wife keeps delaying to tell me if she wants a divorce. I think she is delaying to keep accumulating time so more of my earnings will be applicable to spousal support.

I found the following from a site in CA. Is it true that the date of separation becomes effective when I tell her I want a divorce? I want to protect my future earnings and retirement from being part of the community property based on this date.

Date of Separation

The date of separation is the date that you and your spouse definitively decide to part ways. That could be when one person moves out of the house. It could be when you tell the other party you want a divorce. Or, it could be when you serve your spouse with the divorce papers.

The date of separation is an important issue because it represents the end of the marital estate. Money and property acquired after that date will not be characterized as community property. The date of separation is an important date and could present an issue potentially worth hundreds of thousands of dollars.

Asked on 8/10/17, 9:42 am

1 Answer from Attorneys

Timothy McCormick Haapala, Thompson & Abern, LLP

Just telling her you want a divorce alone is usually not enough if there is any meaningful delay between telling her and filing or moving out. If there is disagreement on the date of separation, the court will look at the total facts and circumstances of what you say and do and when you say and do it to determine when the date of separation occurred. There is no bright-line rule. So the clearer you make the cut, the easier it will be to prove. If you think divorce is inevitable, file yourself and either move out or get an emergency temporary order that she move out, if that would be appropriate. If you think the marriage can be saved, then you have to weigh how possible that is against how much money it may cost if you are wrong and decide which is more likely and how much each matters to you.

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Answered on 8/10/17, 9:51 am

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