Family Law

San Jose Divorce Attorney Discusses Date of Separation Issues

By Scott Sagaria

San Jose Divorce Attorney Discusses Date of Separation Issues

Kate Walsh, Star of Private Practice, Getting Divorced After Only 15 Months of Marriage ? Dispute Arises Over Date of Separation

In December, Kate Walsh?s husband, Alex Young, filed for dissolution of marriage, citing irreconcilable differences. In her response, Ms. Walsh apparently disputes the date of separation. By 5 days.

You may be wondering (a) how can anyone not know when they separated, and (b) why does it matter?

The answer to (a) is that the date of separation is not simply an objective test of what day it was, but a subjective matter that occurs when either of the parties does not intend to resume the marriage and his or her actions exhibit the finality of the marital relationship. Ergo, sometimes couples have a discussion and decide together that they are splitting up and they agree on the date of separation. Other times, one party decides the marriage is over and takes actions when demonstrate this in some way. The question for the court is whether the rift in the relationship was perceived by both parties as ?the nail in the coffin.? So, Ms. Walsh apparently believes the marriage ended 5 days sooner than her husband. She will have to show that she had the subjective intent to not resume the marriage.

The answer to (b) is the date of separation matters because that is when the community ends. In California, a community property state, all income earned after the date of separation is that spouse?s separate property. All property acquired after that date is separate property (unless the source of funds for the property is community property funds). So theoretically, those 5 days could make a difference. A party could win the lottery 3 days after separation with a lottery ticket purchased the day after separation and those winnings could be 100% separate property.

California community property law is, at times, complicated and requires sophisticated legal advice. If you are pursuing dissolution, legal separation, or an annulment, we highly recommend you consider obtaining counsel. Here at Sagaria Law, we offer a full range of family law legal services, from divorce and property disputes to custody and visitation matters. We handle all types of family law actions, including adoptions, guardianships, parentage, dissolution and support. We have five Northern California locations including San Jose, Redwood City, Fremont, Salinas and Sacramento. We offer a free thirty minute consultation, either in person at any of our offices, or over the phone. Call our offices today to schedule your free consultation with one of our family law attorneys: (408) 279-2288 or (800) 941-6730.

Full post as published by California Family Law Blog on January 13, 2009 (boomark / email).