How is the Date of Separation Determined?

In California, the date of separation has a major impact on your divorce case.  It is a vital factor in how the courts decide to divide up your property, calculate spousal support, and other matters.

As a community property state, California considers any property and income acquired during marriage as owned by the “community”.  This means that both you and your spouse own a 50/50 share of all assets and debts acquired together as a married couple.

As you move through your divorce proceedings, the property you are entitled to depends on what date the Court deems as the date of separation.  This is the deciding factor in what the Court characterizes as community property versus separate property.

Usually when a couple starts the divorce process, one spouse moves out of the marital home and takes their personal belongings with them.  The court can use the details of this move to determine if this is the date of separation for a couple.

However, more complex situations may arise.  For example, couples may start the divorce process, yet continue to live together in the same household for various reasons, such as maintaining stability for their children, or financial pressures. 

Previously, the California Supreme Court classified married couples living together as not legally separated. They ruled on a case in 2015 citing an 1870s statute that married couples must be “living separate and apart” in order to determine the date of separation. In that case, even though the couple essentially decided to end their marriage, they continued to live together, affecting their division of property based on the relevant date of separation.

However, California enacted Senate Bill 1255 to directly abrogate In re Marriage of Davis. This new law adds Section 70 to the Family Code, which, effective January 1, 2017, defined “date of separation” as “a complete and final break in the marital relationship . . ., as evidenced by both of the following: (1) The spouse has expressed to the other spouse his or her intent to end the marriage. (2) The conduct of the spouse is consistent with his or her intent to end the marriage.”  The court must take into account “all relevant evidence” in making the determination.

Now married couples no longer need to live apart to be separated.  Instead, your separation date is based on the communication, actions, and behavior that you express to end your marriage.  In the eyes of the law, you can live in the same home, but cannot outwardly or publicly be affectionate, hold each other out as a married couple, go on recreational trips together, or attend marriage counseling sessions.  Such behavior works against the intent of Family Code section 70 and can work against you to establish a clear date of separation.  The positive side is that if you are seeking a divorce, you can start the process without having to move out of the residence. 

As in many divorce cases, there are gray areas that need a deeper investigation to cut to the truth of the matter.  If you have questions about the details of your case and would like our assistance, Dias Law Firm is always available to handle your divorce matter. 

By: Vanessa M. Freitas, Law Clerk

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