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.