The date of separation statute

Family Code 70

Family Code 70 is California’s law as of January 1, 2017 on date of separation. Let’s go through this interesting code section that abrogated a significant California Supreme Court decision.

What does Family Code 70 state?

Family Code 70 states:

(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.

Before Family Code 70, the Marriage of Davis decision rocked the family law world

In divorce cases, the date of separation has been a volatile area of law. In 2015, the California Supreme Court shocked the family law world by its decision in the case of Marriage of Davis. The California Supreme Court stated for there to be a date of separation, the spouses must live in separate residences and separation must accompany an intent to end the marriage. While the Supreme Court tried to hedge a little bit on this issue, California family law attorneys and judges interpreted the strict mandate as stating physical separation was a critical component of the date of separation. This caused a bit of havoc for those spouses who continued to live together but clearly subjectively and objectively intended to end their marriage.

Family Code 70 abrogated the Marriage of Davis decision

The Marriage of Davis decision was simply an awful decision and the California legislature actually did something right by enacting Family Code 70 on January 1, 2017. Family Code 70 made new what was old. It abrogated (fancy word for killed) the decisions of Marriage of Davis (2015) 61 Cal.4th 846 and In re Marriage of Norviel (2002) 102 Cal.App.4th 1152. Instead, Family Code 70 set forth a subjective and objective standard to determine date of separation.

So what does Family Code 70 really tell us?

It tells us there must be a complete and final break in that marital relationship and that requires a dual showing:

First, a spouse must have expressed to the other spouse his or her intent to end the marriage.

Second, that spouse’s conduct must be consistent with that intent to end the marriage.

To determine date of separation, the court needs evidence. This evidence can include but not be limited to physical separation, social interaction between the spouses, financial entanglements including joint or separate tax filing, joint or separate bank accounts, family events including holidays, vacations, and, to some extent, other relationships one or more of spouses may undertake. And that is not even all of it.

How does reconciliation affect Family Code 70?

It is hard to say now that Family Code 70 is on the books. There used to be a day where spouses could have more than one date of separation but I’m not sure Family Code 70 allows that. Since the breakdown has to be complete and final, can there really be more than one separation date? Can there really be more than one complete and final breakdown? These are questions that are not yet answered as of the date we write this page because Family Code 70 is still new on the books. I say there can only be one date of separation and that is the most recent date and not any prior dates. This issue is certainly subject to reasonable disagreement.

Have a date of separation issue in your divorce case? Call our California family law firm for a strategy session.

Nothing contained on this page or on our website is legal advice nor should it be construed as such. It is not intended to apply to your specific situation or answer your specific questions.

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