What is the Date of Separation in a California Divorce?

Learn how date of separation may affect spousal support and division of assets or debts

The date of separation in a California divorce may play a critical role

Date of separation can be the difference between whether or not an asset is community versus separate property

A difference in the date of separation can determine whether a marriage is of a long duration or short. The length of the marriage affects spousal support.

Therefore, date of separation may affect whether spousal support continues indefinitely until death or remarriage or is 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 family law have gone through more change than the date of separation

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.

Marriage of Davis decision created a bright line rule on date of separation

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."

Family Code 70 changed the definition of date of separation back to what it used to be

That led to the passage of Family Code 70. Here is what 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."

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.

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
  • whether their private conduct is consistent with a couple of people who have had a final and complete break in their marital relationship.

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, etc. those factors could be very important.

Facts can come into evidence through testimony of either spouse, testimony of witnesses, documents (Exhibits), etc.

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.

Do not confuse date of separation with legal separation

Date of separation is not the same thing as being legally separated. Legal separation is a different legal issue. Here is an article on what it means to be legally separated.

Date of separation disputes require fact gathering and a great lawyer

The date of separation in your divorce case can mean the difference between a long-term or short-term marriage or whether a significant asset or debt is community or separate. Therefore, take the care to ensure you gather all the facts and hire an experienced family law attorney.

Our law firm is skilled in litigation and we have had success in prevailing in date of separation disputes, sometimes without a formal hearing or a trial.

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