One of the crucial moments in any divorce -- with legal and financial as well as emotional consequences -- is the actual date on which one spouse tells the other that the marriage is definitively kaput, without hope of reconciliation. In California this is known as the "date of separation," and when it occurs there's no more running on empty or feasting on crumbs.
Community property stops accruing at the date of separation. The time between the date of marriage and its expiration date also defines the length of the marriage for purposes of spousal support. And while there are general rules about spousal support, in practice it has become a moving target at a time of economic uncertainty when earning by gender is becoming equalized for many couples.
The legal aspects of the date of separation are clear, but the emotional truth can be murkier. The response to "I want a divorce" is often "Let's go to marriage counseling," the intention of which is generally understood to be an attempt to save the marriage. But this is not always the case. Consider this a heads up to be careful when your spouse pushes for counseling.
Ideally, both partners seek marriage counseling to save the marriage, and it works. Both work hard to right wrongs, to strengthen communication and to rein in acting out. Even if one party moves out of the home, or infidelity is involved, or if you stop sleeping in the same bed or being intimate, the marriage may survive and even thrive. In this scenario, no date of separation needs to be set while the couple works through emotional issues.
In the case of a lingering separation, the cost of attempting to save the marriage may mean that community property continues to accrue and the duration of the marriage is extended. Unresolved separation issues can be financially devastating or a windfall for one or both parties depending on the circumstances. If, for example, the higher earning spouse knows business will be taking a nosedive, waiting for that to unfold -- and then arguing that this downturn is not a hiccup but a harbinger of a future downward trend -- would be to his or her advantage. Or, one party might go on a spending binge, thus depleting the assets to be divided up.
The sad truth is, people often enter marriage counseling too little too late. When counseling works, the couple learns from its lowest moments and emerges united and healed. When it fails, lawyers come in to the picture.
You must consider the possibility that your spouse may employ counseling as a nefarious strategy to get a financial edge by manipulating the date of separation. Remember the adage: "Watch what people do as much or more than what they say." How do you know if this is happening to you, or someone you love? One red flag is when one party seeks legal, pre-divorce counseling at the first sign of trouble.
You need to make an effort to anticipate problems, to sense when to take action in your enlightened self-interest. It is crucial to self-protection, self-preservation and ultimately your survival. While marriage counseling can save a marriage, it would be willfully naïve to ignore the possibility that there may be unscrupulous gamesmanship going on when it is suggested.
With all due respect to the sanctity of a marriage and the seriousness of marital vows, the financial aspects of divorce may depend upon whether your spouse's request for marriage counseling is made with a pure heart. Mindfulness of the right time to deal with this simple but profound question can make a huge difference now and for the rest of your life and generations to come.