Property division is a tricky, but essential, part of any divorce. The distinction between community property and separate property for property division purposes can be nuanced, and often hinges on the date of separation.
Types of property in a divorce
Property can be divided into two categories when it comes to property division in a divorce: community property and separate property. Community property consists of most items purchased, debts incurred and income earned during the marriage. Both spouses have an equal ownership interest in community property, and it will be divided evenly in a divorce.
Separate property, on the other hand, includes anything owned, owed or earned prior to marriage or after the date of separation. It belongs to the spouse who owns, owes or earned it. So, to know whether property is community or separate property, it is essential to know the date of separation.
The date of separation for property division
Most couples already know the date they were officially married. It can be found on their marriage certificate. However, determining the date of separation is not always as easy.
There are two prongs to the date of separation. First, the date of separation is the day that one spouse tells the other, or by their actions shows the other, that they want to divorce. The second prong is that after that day, the spouse’s behavior is consistent with one who wants to divorce.
After the date of separation, any assets purchased, debts incurred and income earned are considered separate property, not community property. Thus, it will continue to belong to the spouse who bought it, earned it or incurred it.
Knowing the difference between community property and separate property is essential to the property division process. Key to that understanding is knowing both your marriage date and your date of separation.