The date of separation in a California divorce plays an important role in many family law cases.
It can be the difference between whether or not an asset is community versus separate property and whether a marriage is of a long duration such that spousal support may continue indefinitely until death or remarriage or a short-term marriage where spousal support may cut off at the “half the duration of the marriage” mark.
In this article we will discuss how the date of separation in a California divorce is determined and what factors the family law court would take the consideration when he or she decides your date of separation.
Few areas of California law have gone through more uproar and change than the date of separation in a divorce. It used to be understood that a date of separation occurred when either the husband or the wife did not intend to continue the marriage and either of their actions were consistent with a final breakup in the marital relationship. Then, in July of 2015, the California Supreme Court turned that on its head in a decision called Marriage of Davis, which created a bright-line rule and made physical separation a necessity for there to be a separation, although the Supreme Court left open situations that could be an exception to that rule. Many family law lawyers, judges and our California legislature were not happy with this decision and in 2016, Governor Brown signed SB-1255 under “dissolution of marriage – date of separation.” As of the date this article is updated, SB-1255 is not yet officially the law. It will become the law on January 1, 2017. Here is its text as of August of 2016.
“SECTION 1. Section 70 is added to the Family Code, to read:
70. (a) “Date of separation” means the date that a complete and final break in the marital relationship has occurred, 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.
(b) In determining the date of separation, the court shall take into consideration all relevant evidence.
(c) It is the intent of the Legislature in enacting this section to abrogate the decisions in In re Marriage of Davis (2015) 61 Cal.4th 846 and In re Marriage of Norviel (2002) 102 Cal.App.4th 1152.”
So, in essence, we are kind of back to the way things were before the Marriage of Davis decision.
Nothing in this article is legal advice or intended to apply to your specific situation. To obtain legal advice about your specific situation, consult with an experienced California family law attorney. Do not rely on anything you read here because the information we provide here is very general and not intended to apply to any specific factual situation.