Date of Separation in a California Divorce

Date of separation in a California divorce

How is the date of separation in a California divorce determined? What impact does it have?

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.

In California, a date of separation occurs when either the husband or the wife does not intend to continue the marriage and either of their actions are consistent with a final breakup in the marital relationship. Separation does not occur simply because there was a fight or even if one spouse temporarily moves out. The problems must be significant enough to impair the marital relationship such that there isn’t a reasonable possibility of eliminating or resolving the issues that caused the breakdown. 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. 

What does the family court look at when determining the date of separation in California?

California divorce courts typically looks at each spouse’s living situation and whether or not the two of them are truly separated. Some of the factors the family court takes into consideration include whether the spouses continue to live under the same roof, continue to hold themselves out to the public including family and friends as married or separated, continue to merge their finances and support each other, file joint or separate income taxes, engage in sexual intercourse with each other, date others and, in general, whether their private conduct is consistent with a couple of people who have had a final and complete break in their marital relationship.

A recent California decision in July of 2015 called Marriage of Davis may have made a significant impact on the importance of physical separation when it comes to determining whether earnings and accumulations of a spouse while spouses live together is separate property (even if it is arguably after a date one spouse claims was the “date of separation” but the other may disagree) or whether it is community because the spouses continued to live together. The Supreme Court of California stated:

Family Code section 760 provides that all property acquired by the spouses during the marriage is community property [e]xcept as otherwise provided by statute. One such statute is Family Code section 771, subdivision (a) (section 771(a)), which provides that [t]he earnings and accumulations of a spouse . . . , while living separate and apart from the other spouse, are the separate property of the spouse. In this case we consider whether a couple may be living separate and apart, for purposes of section 771(a), when they live together in the same home. We conclude the answer is no. The statute requires the spouses to be living in separate residences in order for their earnings and accumulations to be their separate property. Because the Court of Appeal concluded otherwise, we reverse its judgment.

We have not yet determined the long term impact of this decision (and whether or not the legislature will step in and overrule this case) which is why the issue of physical separation has become very important in California when evaluating community versus separate earnings and accumulations. We obviously cannot give legal advice about your specific situation here so your consultation and retention of an experienced family law attorney is important. Nothing in this article or anything written on our website is legal advice.

The facts rule the day on date of separation in a divorce

When the issue of date of separation is litigated, the facts are everything. If the facts show, for example, that the husband and wife continue to eat dinner together at the family home, maintain a mailing address, engage in social events including vacations, and continue to behave consistent with a married couple, no amount of testimony that by the one trying to persuade the Orange County family court he or she intended something different will likely persuade the court. What impact the Marriage of Davis has on the facts remains to be seen.

Can there be more than one date of separation?

Some cases have the unusual facts of a husband and wife who have more than one date of separation and therefore separation period. This happens when a husband and wife separate from each other and meet the factual test for the definition but then reconcile for a period of time, only to separate again. These types of cases are especially complicated because the decision that has to be made is whether or not there was only one date of separation, which is typically the last one, or whether or not to was more than one instance of the parties being separated from each other and therefore properties acquired during the various separation periods are or are not separate property.

The date of separation impact on a long versus a short term marriage

When the data of separation in your divorce case can mean the difference between a long-term or short-term marriage in California or whether or not a significant asset or debt is community or separate, care you must taken to ensure you gather all the facts and hire an experienced Orange County family law attorney.

Our law firm is skilled in litigation and we have had great success in prevailing in such date of separation cases even without a formal hearing or a trial. Many of these date of separation cases, once all of the facts are gathered, settle and do not proceed to hearing.

Do you have a family law case with the date of separation an issue? Is it the difference between a long-term marriage and a short one? Don’t stress. Hire our experienced law firm to represent you. Contact our family law attorneys for an affordable, initial consultation.

Comments

  1. Vanessa says

    My spouse filed for divorce in March 2013, but we tried to reconcile and had intimacy / intercourse in October 2013. Can I argue the date of separation to be 10/13, instead of 3/13 for spousal support purposes?

    • B. Robert Farzad says

      Sure you can argue it. He may have arguments too, right? The date of separation is based on several factors and not just one.

  2. Jeffrey Owens says

    I have been in a 30 year marriage, but we live in separate parts of the state. We have not been intimate since 2010, but I continue to provide support for her in part. We still have a joint checking account to pay all of our expenses.
    I filed for divorce in 2013, but still trying to resolve financial issues. Can I claim date of separation as 2010? How will spousal support be figured?

    • B. Robert Farzad says

      We cannot assess your case or give you advice over a comment to an article. If your case is in Orange County or LA and you are ready to hire an attorney, you can contact us.

  3. Lisa says

    I legally separated from my ex-husband 5 years before our final divorce. I have soley paid the mortgage during our separation. Is he intited to the equity at the time of seperstion or the divorce?

    • B. Robert Farzad says

      I would need to know much more about the case than what you stated here starting with when the house was purchased and the source of the funds. Also, some people think they are “legally separated” but don’t realize that term in California has a very specific meaning and it’s sometimes not what spouses think it is. If your case was in Orange County and you wish to pay for a consultation to go over it with us, call us.

  4. Stephen says

    My spouse began with sleeping in different rooms, then we told our children, then family, meanwhile she maxed out the credit cards in my name to get legal council without my knowledge. I’m the sole income earner. I used our joint bank account funds to pay down the credit cards leaving us with barely any money. I opened up my own bank account. Would telling your children be significant enough to be considered the date of separation? My main concern other than the children, is my wife running up debt that I may need to split 50 50, I’m fine with it if the date of separation is determined sooner than later.

    • B. Robert Farzad says

      Stephen, if your case is in OC or LA, contact us please. We don’t give advice in a comment section of an article.

  5. Rip says

    Are you aware of any cases where there are infact, two dates of separation?
    Is there precedence for this? On your website, you ask that question, but there was not a clear,yes, two separation dates are possible to establish.

    • B. Robert Farzad says

      There is case law in California that addresses situations with multiple dates of separation and what to do in such situations. Such issues are very fact-specific. If you want to set up a case strategy session with us regarding your specific situation, call us at the office. We primarily handle cases in Orange County and Los Angeles, CA.

      • urs jakob says

        Believe it or not, my trial is in Montreal, Canada. The case is being heard according to California law as Quebec operates under Napoleonic law. The case must be heard under the law of the place where the couple first domiciled which in our case was Venice California. I have yet to determine how I will set up my California legal team. Thank You.

  6. urs jakob says

    My wife hid community assets in Canadian numbered companies then purchased real estate through these companies, and then sold these assets making tracing difficult …. is there a means of extending the date for dividing property from the separation date all the way through to the date of trial if the property can not be valued at the date of separation due to commingling, violation of fiduciary responsibilities …. I am not talking about extending the valuation date, I am referring to extending the date of separating the property.

  7. urs jakob says

    I am not referring to two or multiple dates of separation. I am referring to moving the established date of separation forward due to the inability to value assets.

    • B. Robert Farzad says

      I am not clear what you are asking but, regardless, we unfortunately cannot give legal advice in a comment to an article.

  8. Michelle says

    We were married August 2004 and separated February 2005. Do we qualify for a simple and quick divorce?

    • B. Robert Farzad says

      That is a pretty short marriage so I hope so but that also depends on whether there are children, what assets were purchased during the marriage and other factors. You should not represent yourself just because you have a short marriage. Get the advice of an experienced family law attorney to handle it for you.

  9. Dennis says

    My wife left me in 1974 and have lived 2000 miles away in another state for 40 years. She cohabitated in a common law marriage with another man and had other kids with him. I have not had contact with her for 30 years. But, now she wants half of my military retirement.

    • B. Robert Farzad says

      Dennis, if your case is here in Orange County, California, then contact us immediately. I think we can help you with this. If your case is elsewhere, please contact with a family law lawyer who practices law in your local court.

  10. Rose says

    we were married in 2008, I filed in 2010 for a legal separation and we lived apart for 1year. We agreed to try to try to salvage anything that might be worth salvaging but things are back to the way they were. We have no assets,community property, bank accounts, credit cards together. He also did not respond to the 30 days to contest separation. Can I now go back to court and file for my divorce? I was informed I did not need his signature since he did not respond the first time.

    • says

      Hi Rose, thank you for commenting. You are asking a very specific question about your case. To answer your question, we would need you to come in and meet with us and we would review your paperwork before we could answer your question. If you case is in Orange County, you may contact us at our office. We charge a reasonable fee for such meetings.

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