The length of your marriage is a very important factor that is used by Courts to determine how to deal with certain issues in your divorce. This is why it is so important to determine the exact date of separation from your former spouse, as the marriage effectively ends for purposes of spousal support and property division upon the date of separation.
Sometimes there may be a dispute between the parties as to when separation occurred, so it is important that you seek out an experienced divorce attorney to assist you in establishing the correct separation date.
How is the date of separation determined?
The Court determines the date of separation in divorce cases by using two different tests. The first test that the Court uses, involves physical separation of the parties. The Court first looks to see whether the parties have physically separated themselves from one another.
A common misconception that many people have is that you cannot be separated if you reside at the same address. This is not true. In these tough economic times, more and more divorcing couples are finding it more difficult to afford two residences, and opt to stay at the same residence during the divorce. As long as steps are taken to ensure that the parties are physically separated within the residence, then the parties will be physically separated for purposes of this test.
The second test is a subjective test, and refers to the intent of the parties. The Court’s will try to determine the point in time when one, or both, parties decided, in their minds, that the marriage was over. Mere physical separation is not enough, as some separated couples have no intention of ending their marriage through divorce.
The Court will look to the parties’ conduct toward each other in determining whether they believed the marriage was over. The date of separation will be on the date when both physical separation and intent is achieved.
Length of Marriage and Spousal Support(California Family Codes 4320-4339)
The length of your marriage is a very important factor in determining how courts deal with spousal support. The purpose of spousal support is to provide the supported spouse with sufficient income for their basic needs and to ensure that their lifestyle will remain consistent after the divorce. Because of this, courts use the length of the marriage to determine how long spousal support orders should last.
Marriages are placed into one of two categories: short-term marriage and long-term marriages. Generally speaking, marriages that are less than ten (10) years are short-term marriages, and marriages that are more than ten (10) years are long-term marriages. However, the ten-year mark is not a hard and fast rule and a judge has discretion in making a determination as to which category your marriages falls under. The judge has discretion in making this ruling.
If your marriage falls into the short-term category, this means that if the court orders spousal support, the spousal support order will likely last for half of the duration of the marriage. Therefore if you were married eight (8) years, spousal support would likely last for four (4) years. With respect to long-term marriages, the court has wide discretion to order that spousal support will last until death or remarriage of the supported spouse. Thus, the length of the marriage is very important to spousal support determinations and you should hire an experienced divorce attorney to assist you with this action.
Length of Marriage and Property Division
When it comes to determining whether either party’s property is community or separate property, the length of marriage and date of separation are crucial. Since all property acquired before the marriage and after the date of separation is considered the separate property of either spouse, determining a specific date of separation could be key to whether you or your former spouse have a community interest in certain property. The divorce attorneys at Wallin & Klarich have the knowledge and experience necessary to assist you in your property division issues.
If you are involved in a divorce and there is a dispute about the date of separation, call the experienced divorce attorneys at Wallin & Klarich immediately to set up a consultation. Our divorce attorneys have over 30 years of experience in handling divorce matters. With offices located in Orange County, Los Angeles, Riverside, San Bernardino, San Diego, Sherman Oaks, Torrance, West Covina, Victorville, and Ventura, we are always available, wherever you happen to work or live.
Call us today at 888-749-7428. We will be there when you call.