What Is a Date of Separation?

Hossein Berenji, Mar 29, 2022

The date of separation in California family law is different from being legally separated. The date of separation occurs when spouses end their economic union. Therefore, it can significantly impact matters related to property division, spousal support, and child support.

How Do You Determine the Date of Separation in California?

The issue of when a couple separates has been litigated numerous times in California. In many states, the date of separation is based on physical separation. Therefore, it occurs when one spouse moves out and “physically separates” from the other spouse.

However, California used to recognize the date of separation as the date either spouse indicated their desire to end the marriage, and their actions were consistent with the intent to seek a final breakup of the relationship. 

Then, in July 2015, the California Supreme Court issued a ruling that added physical separation as a requirement for separation. The decision became known as the Marriage of Davis decision. It didn’t take long for the California legislature to overturn the Marriage of Davis decision.

The ruling was problematic for several reasons. First, some couples may not be able to physically separate due to financial constraints, such as paying for housing and utilities for two homes. Or, couples might remain in the same home because it is in the best interest of their children. 

Therefore, on July 25, 2016, Governor Jerry Brown signed Senate Bill No. 1255. The bill amended sections of the California Family Code and added Section 70. 

Now, according to California Family Code §70, the date of separation means the date that a final and complete break in the marital relationship occurred, as evidenced by the following:

  • A spouse expresses to the other spouse their intent to end the marital relationship; and
  • The spouse’s conduct exhibits their intention to end the marriage.

The code requires judges to consider all relevant evidence when determining the date of separation. The statute specifically indicates that the Legislature intended to repeal the decision in Marriage of Davis.

How Does the Date of Separation Affect My Divorce in California?

California is a community property state. Community property is divided 50-50 in a divorce. Assets acquired and income earned during a marriage are considered community property and subject to property division. Likewise, debts and obligations incurred during the marriage are also considered part of the community property marital estate.

Therefore, the date of separation is significant in a divorce action. After the parties separate, income earned and assets obtained by either spouse becomes their separate property. Separate property is not subject to property division laws.

Spousal support is another area that could be impacted by your date of separation. In California, a marriage of long duration is any marriage lasting ten or more years. Therefore, if you and your spouse are married for ten or more years, a judge can order spousal support without an ending date. 

However, if your marriage lasted less than ten years, spousal support is granted for a maximum of half the length of the marriage. Your date of separation could occur before the ten-year mark, but the court may not grant your divorce until much later. Because your date of separation occurred before the ten-year mark, you do not need to worry about indefinite spousal support.

How Do I Establish the Date of Separation For My Divorce Case?

The courts review all relevant facts when determining the date of separation for a couple. Therefore, if you express your desire to end the marriage but continue to act as if you are married partners in public, the court might assign a later date for the date of separation. 

For example, you tell your spouse that you want a divorce but continue attending marriage counseling, going on romantic vacations, and holding hands in public. The court might find that your actions do not indicate an intent to end the marital relationship.

On the other hand, you provide a written statement to your spouse that you want to end the marriage, but you need to remain in the marital home for financial reasons. You move out of the shared bedroom and hold yourself out to the public to be separated from your spouse. The court may find under Family Code Section 70 that your date of separation was when you informed your spouse that you intended to seek a divorce.

Speak to a California Family Law Attorney About a Separation 

Because your date of separation can profoundly impact your finances and property division, you may want to speak with a Beverly Hills divorce lawyer before expressing your desire to end the marriage. A divorce lawyer will help you determine the best way to achieve your divorce while protecting your financial interests.