Articles Posted in Date of Separation

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If you and/or your spouse are contemplating divorce, one of the initial considerations is whether you should file for divorce or wait for your spouse to file first. Specifically, is there an advantage or disadvantage to filing for divorce first? In a typical divorce proceeding, it does not make a big difference whether you are the petitioner (first to file) or respondent in your case. In the court’s view, both parties are on a level playing field. The petitioning party is not penalized for filing first, but he or she is also not rewarded in any way. In addition, the San Diego Superior Court charges the same filing fee ($435) for filing the Petition for Dissolution and the Response to Petition for Dissolution. Combined, the parties will spend $870 just to make their appearances in a divorce proceeding.

There can be a slight advantage to being the first to file for divorce if you and your spouse reside is different zip codes. Your divorce case will be assigned to a particular courthouse based on representations made in the Petition. If you would like your case heard at the courthouse near your home, you should file a Petition before your spouse. If you believe there may be some advantage to you if the case is heard at the courthouse your spouse’s zip code is assigned to, you can file a Petition and have the case assigned to that courthouse. The petitioner will decide which courthouse his or her divorce case is assigned to. Consulting with an experienced family law attorney who has worked in the different courthouses throughout San Diego County can help you make the decision regarding where to file your case.

In a small number of cases, the first party to file can have a significant outcome on the divorce proceedings. If you and your spouse live in different states or even different counties within California, you should consider filing for divorce as soon as possible. When two spouses live in different counties, the responding spouse will be required to travel to a different county to attend court hearings. This has the potential to be an inconvenience and makes communication with a local attorney slightly more difficult. However, if you and your spouse live in different states, you will want to compare the laws of that state to family code statues and cases in California. It is imperative that you consult with a divorce attorney immediately to determine if you could be greatly disadvantaged if your spouse files for divorce out of state.

If you and your spouse share minor child(ren), the jurisdictional issues involved in your case may be even more complicated. Becoming informed of your options is the first step you can take towards protecting your rights.
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After more than twenty (20) years of marriage, matriarch of the Kardashian clan filed for divorce from Olympic gold medalist, Bruce Jenner. The couple announced their split in October 2013, but continued to work to figure out their relationship on the reality show Keeping up with the Kardashians. The couple began to live separate and apart when Bruce moved out of the family home and into his own place in Malibu, California. However, they continued to take family vacations together and celebrate family events. In September 2014, Kris filed a Petition for Dissolution citing June 2013 as the parties’ date of separation – a few months earlier than previously announced. Shortly thereafter Bruce filed a Response to the Petition citing the same date of separation.

The date of separation is a crucial consideration in any divorce proceeding. Regardless when either party files a divorce petition, the marital community ends upon the date of separation. The date of separation occurs when one party has determined there marriage is over and his or her actions evidence that decision. Typically, all the earnings and accumulations of the parties from the date of marriage through the date of separation are community property. This means that those earnings and accumulations will be equally divided upon divorce. Since Bruce and Kris agree they separated in June 2013, all earnings and accumulations of either party after that date are the separate property of that party.

Pursuant to the filings, the parties agree to share joint legal and physical custody of their seventeen year-old daughter, Kylie. Out of the ten (10) children Kris and Bruce have collectively only one of their children is under the age of eighteen (18). In reality, Kris and Bruce will not likely share custody of Kylie in the normal sense of a “week on week off” schedule or “every other weekend” plan. As shown on their reality show, Kylie generally travels between her parents as her busy schedule permits. Both parents have encouraged Kylie to spend quality time with the other.

According to sources close to the Kardashian’s Kris and Bruce’s respective managers have worked out the fine details of their divorce during the past eleven (11) months of their separation. As a result, the divorce process should be relatively quick. One incentive for celebrities to reach agreements outside of the court system is privacy. As long as the Jenner’s have reached an agreement on all issues, they will likely be required to file many more documents to officially wrap up their divorce. In addition, the Jenner’s have the option to file an abbreviated version of their final judgment, keeping the specific terms out of reach for the public.
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Once a spouse decides that his or her marriage is over, he or she may want to take steps to prepare for divorce before filing the initial paperwork and/or discussing it with his or her spouse. If you are considering your first divorce just the thought of the overall process can be overwhelming and upsetting. In order to enter the process with greater awareness and information, there are a few things that you can do to prepare for divorce.

Consult with an attorney regarding your state’s laws: Each state has specific laws regarding how property will be divided, spousal support, child support, and custody/visitation in the event of a divorce. Many people are unfamiliar with the specific laws of their state and may have misconceptions regarding their rights and options in a divorce. It is important to meet with a certified family law specialist so that you can gather more information about what you can expect in your divorce. Getting an idea of how the process will work and the likely outcomes in your case can ease a great deal of stress and tension.

Become familiar with the different types of child custody: In California there are two types of child custody – legal and physical custody. It is important to understand the differences between these two types of custody and how they relate to each other. Further, there are varying degrees of physical custody and infinite possible custody configurations.

Preventative preparation: One of the biggest jobs for any divorce litigant is helping his or her attorney prepare the mandatory financial disclosure documents. This process can become more difficult if a party no longer has access to the required documents because he or she moved out of the residence, the other spouse took the documents, or the spouse has no direct knowledge of the family finances. Prior to separation, it is advisable to make copies of all financial documents including, but not limited to, bank statements, tax returns, pay stubs, family bills, and title paperwork.

Stay on your best behavior: In preparation for divorce, it is important to refrain from behavior that may reflect badly on you if your matter is heard by a judge. Especially in custody/visitation disputes, poor behavior prior to divorce will reflect on a spouse’s parenting abilities.Begin considering telling the children: If you have decided to get a divorce, it is never too early to begin thinking about and researching possible ways to talk to your children about divorce. It is important to approach this discussion thoughtfully and with great care in order to ensure the child is assured the divorce is not his or her fault.

In any divorce case, emotional preparation can be just as helpful as legal preparation.
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The “date of separation” is one of the most important issues to determine at the beginning of any divorce case. The date of separation marks the end of the martial community and represents the termination of the marriage for the purposes of determining the length of the marriage. From the date of separation forward, all earnings and accumulations of both parties are their separate property. In order for the date of separation to occur the following two factors must be present: (1) the parties must be living “separate and apart” and (2) at least one spouse must have the subjective intent (evident through objectively evaluated actions) never to resume the marital relationship. Until recently, many San Diego family law attorneys believed that, in order to live separate and apart, the spouses needed to maintain two separate residences. However, this issue has always been debatable for other divorce attorneys.

On October 25, 2013, the First District Court of Appeal cleared up the “living separate and apart” debate for the family law community. The First District Court of Appeal sustained a trial court’s holding in In re Marriage of Davis which stands for the proposition that it is not necessary for spouses to maintain two separate residences in order to be “separated” for the purposes of determining date of separation. The court opined that factors, other than living in two separate residences could satisfy the “separate and apart” requirement to establish the date of separation. In particular, the court relied on a change in how the parties handled their finances and the fact that Ms. Davis filed for divorce in its conclusion that the parties lived “separate and apart” while still residing under the same roof.

If you believe you have separated from your spouse but are still living in the same residence with him or her, you might consider the actions of the Davis couple in order to establish a case for date of separation. One of the most important considerations in the Davis case was the change in how the parties handled their finances. In Davis, the parties began depositing their individual earnings into separate bank accounts. Each month, the parties would deposit a certain amount of funds into a joint account which would be used to maintain the household expenses. However, each party was responsible to pay for their own personal expenses with their separate funds. In addition to separating their finances, in Davis the parties began to sleep in separate bedrooms and ceased sexual relations.

In general, the Court will look for a shift in the parties’ behavior to determine the date of separation. Therefore, if the parties have always maintained separate bank accounts throughout marriage, the Court will not likely give as much weight to that factor as it did in the Davis case.
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So you’ve been married for 9 years and you know your marriage has hit a point where you are ready to get out. Perhaps you and your spouse have talked about your impending divorce or maybe it’s just a thought you’ve had in the back of your mind lately.

Either way, is it worth it to stretch the marriage past that ten-year mark? In California, there are several reasons why it might be in your best interest to reach the ten-year marriage mark before seeking to get a divorce

Spousal Support

There are special spousal support rules in California for marriages that are ten years or longer in duration. If a marriage lasted less than ten years, the court will typically order spousal support for a period equal to one half the length of the marriage. However, for a marriage that lasted more than ten years (from date of marriage to the date of separation), the court recognizes it as a “marriage of long duration“. This means that the court retains jurisdiction over spousal support and may not set a termination of spousal support date without the parties’ agreement. Thus, the spouse entitled to spousal support may be entitled to receive spousal support for life or until remarriage. The parties will be required to come back to court in the future to determine whether the spousal support obligation will continue.

Military Benefits

A marriage lasting at least ten years is also important if your soon-to-be ex-spouse is in the military and will be eligible for retirement benefits. If you were married for at least ten years and that time overlaps with ten years of military service, then you will be eligible to qualify for direct enforcement. This means that your portion of military retirement pay will be paid directly to you by the military finance office (who will garnish the service member’s retirement and pay the ex-spouse directly), rather than the service member writing you a check each month.

Social Security Benefits

Another benefit of a marriage of at least ten years is that the Social Security Administration considers it to be a “long-term marriage,” making you eligible for Social Security benefits based on your soon to be ex-spouse’s earnings record when you reach the age of retirement (as long as you aren’t remarried to another person at the time). Read more about retirement benefits and divorce.

No matter how good the financial benefits seem for a marriage lasting longer than ten years, there are some situations in which you should not wait. If, for instance, there is any danger to you or your children, then it is important for you to focus on your safety rather than the potential benefits of staying in the marriage for a longer period of time.
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In a San Diego divorce, a party’s date of separation is the first date when either party subjectively (mentally) decided the marriage was over, finished, and not salvageable. The parties’ overt actions usually demonstrate that subjective frame of mind. For instance, there can’t be ongoing marriage counseling to save the marriage after the date of separation. The date of separation of the parties to a divorce can be a hotly contested issue. Sometimes, when parties do not agree on the date that they separated, the court must step in to help.

In fact, it is quite common for divorcing spouses to disagree about when their date of separation is. These disagreements are usually financially motivated since California is a community property state. This means that in California, community property rights only accrue from the date of marriage until the date of separation. Thus, the date of separation can significantly affect the size of the divisible community estate during a divorce. Some legal, financial, and other practical considerations for the parties to keep in mind when considering divorce and arriving at a date of separation (by way of agreement or decided by the Court) include the following:

  • Stock options: Divorce attorneys will advise their clients that a later date of separation will usually give the community more interest in a stock option.
  • Post-separation bonuses: A later date of separation will give the community a greater interest in a post-separation bonus upon divorce.
  • Pensions: A later date of separation in a divorce will give the community more interest in a pension.
  • Spousal support: A later date of separation from your spouse may provide for more spousal support. The duration of the marriage is one of the twelve factors a California court will weigh in determining the amount and duration of permanent spousal support.
  • Value of a business: A later date of separation in a San Diego divorce will value a sole practitioner’s business at a later date.
  • Pereira or Van Kamp considerations: If the separate property business was brought into the marriage, the community’s interest would stop growing at the date of separation.

The implications of the date of separation in a divorce can be quite significant. With the above considerations in mind, if for example Husband is the primary breadwinner and Wife is a stay-at-home mom, Wife may want to establish a later date of separation in order to maximize the community estate. Husband, on the other hand, may want to establish an earlier date of separation for the divorce so that his income, bonuses, commissions, etc. earned after the date of separation will be characterized as his separate property instead of community property. Clearly, selecting the date of separation can be a complicated matter that may require the advice of an experienced divorce attorney.

www.BickfordLaw.com


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Valentine’s Day is a romantic time in Del Mar and throughout San Diego County. The romance of this holiday can sometimes stir up old feelings between divorcing spouses. It is not uncommon for spouses going through a Del Mar divorce to send each other gifts on Valentine’s Day or even to spend the day together. However, it is important to consider the legal ramifications of these acts especially with regard to the date of separation. On the other hand, newly separated spouses may be spending Valentine’s Day with a new significant other for the first time in a while. Before substantial gifts are given to a new love interest or money is spent on a lavish trip, it is important to also consider how these acts may impact your divorce proceeding in Del Mar.

The date of separation is an important consideration in many divorces. The marital estate is the property divided upon divorce. Property can only be accumulated in the martial estate between the date of marriage and the date of separation. Thus, once spouses decide to end their marriage, they stop accumulating any community assets. In order for a separation to occur, the spouses must physically separate (live apart) with the simultaneous intent never to resume the marital relationship. As Del Mar divorce attorneys understand, only one spouse is necessary to establish the requisite intent to end the marriage.

Read more about date of separation from Del Mar divorce lawyer Nancy Bickford

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It is that time of year when you need to file your income taxes and we want you to be informed. Your filing status for taxes depends partly on your marital status on the last day of the year. If you were still legally married (meaning there is no final divorce decree) as of December 31, 2011 you are considered to have been married for the full year and must file as either married filing jointly or married filing separately. For federal tax purposes, “marriage” currently only means a legal union between a man and a woman as husband and wife. Your filing status is important and is used for many things on your tax return, such as determining your standard deduction, whether you need to file a return, the amount of tax you owe, and whether you qualify for various deductions and credits. When it comes to your filing status, you do have options.

Married Filing Jointly

If you are still legally married, you and your spouse can file a joint tax return. Married couples do not have to be living together to file jointly. If you file a joint return you both must include all your income, exemptions, deductions, and credits on that return. Even if you or your spouse had no income or deductions, you can still file a joint return. You must balance taxes due against your risk of being jointly and separately liable for taxes, interest, and penalties on a joint return. If you question whether your spouse is reporting all income, or have little or no knowledge of your spouse’s income and finances, discuss this issue with legal counsel before signing a joint return. The Internal Revenue Service (IRS) can hold you liable for all taxes due on a jointly filed return, as well as penalties and interest, even if your spouse alone earned the underlying income.

Married Filing Separately

Legally married couples can also file “married filing separate” whether they live together or not. If you and your spouse file separate returns, you should each report only your own income, exemptions, deductions, and credits on your individual return. You can file a separate return even if only one of you had income. However, the married filing separately status rarely works to lower the family tax bill. For example, one major disadvantage is that you can’t have one spouse itemize and claim all the deductions while the other claims the standard deduction. Both husband and wife must either itemize or use the standard deduction. You can’t mix and match. So if one spouse itemizes and the other has nothing to itemize, that spouse would not then be able to claim the standard deduction, which might have reduced the amount of taxes owed.

Another disadvantage with “married filing separate” filers is that they can no longer take any relevant exclusions, credits, or deductions for adoption or education expenses. Likewise, various exclusion and exemption amounts will be cut for child and dependent care expenses, employer dependent care assistance, and alternative minimum tax. Here are some examples if you file separate returns with your spouse:

• You cannot take the Earned Income Credit.
• You cannot take the Child and Dependent Care Credit in most cases.
• You cannot exclude any interest income from U.S. savings bonds that you used for education expenses.
• You cannot take the Credit for the Elderly or Disabled unless you lived apart from your spouse all year.
• You may owe more taxes on Social Security income or railroad retirement benefits than if you filed jointly.
• You cannot deduct interest paid on student loans.
• You cannot take any education credits.
• You cannot take an exclusion for adoption expenses or the Adoption Credit in most cases.

Benefits of filing under this status include only having liability for the tax, interest, and penalties on your own return. The IRS would not pursue you for your spouse’s tax obligation for that same year. If the return is filed electronically, any refund due can be divided up and directly deposited by the IRS in up to three different separate accounts. Note, however, that some financial institutions will not allow a refund for a joint return to be deposited into an individual account, so if this option is being considered, the taxpayer should check with his or her bank.
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Why Would Anyone Delay Their Official Divorce Date?

Yahoo News reported that on Thursday, February 10, 2011, Los Angeles Superior Court Judge Hank Goldberg finalized Charlie Sheen and Brooke Mueller Sheen’s divorce, however, the Sheen’s will not be officially divorced (i.e., legally single) until May 2, 2011. AP reported on February 15, 2011, that Christina Aguilera and Jordan Bratman finalized their divorce but the judgment will not become official until April 15, 2011.

In California, there is statutory six-month waiting period before a divorce judgment can be final for the purpose of terminating a marital relationship. California Family Code Section 2339. In both cases, the delay is because the six-month waiting period has not expired. Sheen filed for divorce in November, thus their marriage cannot be dissolved until May. Aguilera filed for divorce in October, thus her marriage cannot be dissolved until April.

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