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Why Date of Separation Is Important in a California Divorce

I am often asked questions relating to the date of separation in California divorces. The date of separation is important to the division of community assets and debts in the divorce. It’s also important in determining the long term spousal support.

Here’s an informative example:

Question:

My husband took out a big loan from his 401K and took money from his stocks after date of separation. Will I just get half of what is left?

Me and my husband just decided to file for divorce 8/2022, but, actually separated 7/2018? he bought a house after separation using the loan from his 401K and selling of stocks and made me sign a quit claim. we have been married 10yrs and 6months. how will that affect my supposed to be half of 401k and stocks when there is almost nothing left.

Answer:

What is the date of separation you listed on your petition or response to the petition. The date of separation is important because after the parties separate, income earned and assets obtained by either spouse becomes their separate property. Separate property is not subject to community property division laws.

According to California Family Code §70, the date of separation means the date that a final and complete break in the marital relationship occurred, as evidenced by the following:

  • A spouse expresses to the other spouse their intent to end the marital relationship; and
  • The spouse’s conduct exhibits their intention to end the marriage.

The code requires judges to consider all relevant evidence when determining the date of separation.

California is a community property state. Community property is divided 50-50 in a divorce. Assets acquired and income earned during a marriage are considered community property and subject to property division. Likewise, debts and obligations incurred during the marriage are also considered part of the community property marital estate. If your separation date is the 7/2018 date and you identified that date in the petition or response, then your community property assets and debts include the value of the 401k and stocks at the date of separation.

If your date of separation listed on the petition or response you filed is 08/22/2022 then the community property assets and debts include the assets at that date. The quitclaim deed you state you signed is likely not enough to erase your community rights to the asset (new house) he purchased with money from a 401k that was a community property asset. To change your rights a transmutation is required.

According to California Family Code Section 852, valid, enforceable, and binding transmutation agreements must be “made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.” So, transmutation agreements must be in writing and include an express declaration of the intention

Spousal support is another area that could be influenced by your date of separation. In California, a marriage of long duration is any marriage lasting ten or more years. Therefore, if you and your spouse are married for ten or more years, a judge can order spousal support without an ending date. If your marriage lasted less than ten years, spousal support is granted for a maximum of half the length of the marriage.