How is Date of Separation Determined in California Divorces?

How Do You Determine the Date of Separation?

You determine the date of separation by following the two-step process of California Family Code 70.

Why is this important? Determining the date of separation in a California divorce is essential to several issues, including division of property, spousal support, and the overall duration of the marriage.

Here's a comprehensive guide on determining this date. By thoroughly understanding these steps, you can avoid many potential conflicts during the divorce process.

Overview of the Date of Separation

• Definition of Date of Separation
• Importance of the Date of Separation
• Determining the Date of Separation
• Objective Evidence
• Subjective Intent
• Practical Tips for Establishing the Date of Separation
• Coping with Separation
• Next Steps

Definition of Date of Separation

The date of separation in California marks the point where there is a complete and final break in the marital relationship. According to California Family Code 70, this requires two events:

• One spouse expresses to the other their intent to end the marriage. For guidance on communicating this difficult decision, refer to this article on telling your spouse you want a divorce.
• The spouse's conduct is consistent with the intent to end the marriage.

Importance of the Date of Separation

Here is why the date of separation is so important in a California divorce:

• Property Division: California is a community property state, meaning that all assets and debts acquired during the marriage from a community property source are divided equally. The date of separation sometimes acts as the cutoff point for what is considered community property versus separate property.
• Spousal Support: The length of the marriage is calculated from the marriage date to the separation date. Sometimes, that separation date can mean the difference between shorter and longer spousal support. That is especially true when the marriage is longer than 10 years.

Determining the Date of Separation

Objective Evidence

• Physical Separation: Traditionally, the date of separation was easier to establish because it focused on one spouse moving out of the marital home. Physical separation is still important but not critical to the separation date. Based on modern economic constraints and changing attitudes, many couples continue to live together while technically "separated." In such cases, maintaining separate lives within the same household is important. However, it is still harder to do, and physical separation makes it easier to establish a date of separation.
• Living Separately: Actions such as sleeping in different rooms, not sharing meals, not being intimate with each other, separating finances (without taking advantage of the other spouse or breaching fiduciary duties), and generally not presenting as a couple can help establish a date of separation. Think of it as a casual roommate living situation.

Subjective Intent

• Expressing Intent: Clearly communicating the intent to divorce, whether through conversation, text messages, or emails, is essential. This communication should be unequivocal and documented.
• Consistent Conduct: The spouse's behavior must be consistent with their stated intent to end the marriage. This includes actions like opening separate bank accounts, stopping joint activities, and other behaviors that signify the end of the marital relationship, similar to what we noted earlier.

Practical Tips for Establishing the Date of Separation

• Document Everything: Keep records of all communications regarding the intent to divorce. This includes texts, emails, and any written statements.
• Collect Evidence: Save evidence that supports your claim of separation, such as leases for new residences, separate utility bills, photos or videos that are consistent with a separated couple, and witness testimonies from friends or family. All these documents can help prove your intent to separate and establish a clear timeline.
• Seek Legal Advice: Consult an experienced family law attorney for additional tips on establishing your separation date. Even hiring a family law attorney can show the intent to separate, which can prevent disputes later.

Coping with Separation

Separation can be challenging and emotional. It's important to take care of your mental and emotional well-being during this time. For strategies on how to cope with the stress and emotions of separation, read this helpful guide on how to cope with separation from a spouse. Taking care of yourself is essential for navigating the difficult journey and can significantly impact your recovery.

Next Steps

The date of separation in a California divorce plays a pivotal role in determining property division, spousal support, and the classification of marital versus separate property. By understanding and properly establishing this date, spouses can ensure a smoother and less contentious divorce.

We have seen how important winning date-of-separation disputes in a divorce can be. Yvette Ochoa, a family law attorney and partner at our family law firm, recently won a major victory at a trial that was focused entirely on date-of-separation issues. Each of our attorneys is highly experienced with date-of-separation issues.