Date of Separation and the Mediation Process

date of separationIn some dissolutions, the date that parties separate is a crucial issue.  This is because by law, the marital ‘community’ ends on the day when parties separate.   The end of the marital community means that income earned or possibly property purchased after that date might belong to only one person.  The date that parties separate also determines the length of the marriage, which potentially affects the length of spousal support or whether or not spousal support can be terminated.

While each situation is different, the date of separation can be a very contentious issue in a divorce and has the potential to derail settlement.   For example, let’s say that Ms. Smith is the primary wage earner for her family.  She believes that she and her husband separated in January 2016, when she packed most of her belongings and began to spend many nights at her friends’ house and on the sofa at her office.  Ms. Smith did return to the marital home for dinner at least once a week.  She stopped by to do her (and sometimes her estranged husband’s) laundry.  The couple also decided not to tell very many people about their impending divorce and the couple attended many social and business related events together.   Mr. Smith works, but earns approximately 20% of Ms. Smith’s income.  He believes that the parties separated in August 2016, when Ms. Smith finally rented an apartment.

In March 2015, Ms. Smith received approximately $100,000 in commissions from work that she did from January 2015 until March 2015.   Since Ms. Smith believes the date of separation was January 2015, she also believes that the $100,000 is her separate property.  Conversely, given his belief that they separated in August 2015, Mr. Smith believes the $100,000 is community, making him entitled to $50,000.  To complicate matters further, in March 2015, the parties would have been married for 10 years.  Under California law, a marriage of 10 years or longer is considered ‘long term,’ which could greatly affect spousal support.

The facts of this particular situation are such that, a court could find for either party in terms of a date of separation-  it could be January or August.  One person ‘wins’ and one person ‘loses.’

Does this sound complicated?  The above situation occurs more often than you might think.  Many people do not wish to be a part of the adversarial world of litigation, where the outcome is all or nothing and where they risk making enemies of each other.  Enter the Mediation process, where the Smiths can meet with a skilled mediator trained in family law.  The mediator can assist the Smith’s in crafting a solution to their complicated situation that works for their family.  A global solution can be reached that takes into account the income (i.e., property )as well as support.  In mediation, complexity of the matter at hand is not the issue, the willingness of the parties to listen to each other and reach an equitable solution is the definitive factor.

By Frann Setzer, Esq. 

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