Encinitas Divorce Lawyer Explains Big Change in the Law
A California Supreme Court decision hot off the presses is going to change the game when it comes to how divorces are handled in California family court. In the case of Marriage of Davis filed July 20, 2014 the Supreme Court changed the interpretation of the law with regard to ascertaining the date of separation. This decision will have major implications on pending cases. In fact there could be swings of tens and hundreds of thousands of dollars in high asset divorce cases wherein the date of separation is at issue.
Marital Community Defined. Date of Marriage to Date of Separation
In California, the martial relationship is measured from the date of marriage to the date of separation. “Separation” is defined as the date that the marriage is “irretrievably broken.” This can mean many different things depending on who you ask. When parties divorce, their community property is divided equally between the Husband and Wife. Community property is defined as all property acquired by either spouse between the date of marriage and the date of separation.
“In a high income and high asset case, the lower wage earner may very well want to extend the date of separation as far out as possible so as to continue to reap the benefits of the higher wage earner’s income and retirement savings. While the high wage earner is going to want to financially separate from his or her spouse sooner than later” says Encinitas divorce lawyer John Griffith.
The date of marriage is easily ascertainable for obvious reasons. However, the date of separation can be a point of contention for various reasons. Some divorce cases actually go to trial in order to determine the proper date of separation. Community property rights cannot be determined until the date of separation is agreed upon or ruled upon by the judge.
New Strict Requirement for Date of Separation
The Davis case requires that the parties live separate and apart (in different households) in order to be determined to be separated for the purpose of division of property. This is a big change primarily because quite often spouses decide to live together under the same roof during the pendency of the divorce. This is no longer an option for those seeking to be determined to be “separated” for financial reasons.
Divorce can be a complex process. Knowing and understanding the law can make a big difference in how you approach your case even from the very beginning. If you have a lot to lose then it is worth it to talk to divorce lawyer—if even for a consultation so that you know your options.