In California, the date of separation has a major impact on your divorce case. It’s a vital factor in how the courts decide to divide up your property, calculate spousal support, and other matters. Let’s uncover how this date is established to help you gain a better understanding and how it can apply to your case.

Significance of Date of Separation

As a community property state, California considers any property and income acquired during marriage as owned by the “community”. This means that both you and your spouse own a 50/50 share of all assets and debts acquired together as a married couple.

After your marriage is dissolved, the property you are entitled to depends on what date the courts deem as the date of separation. Essentially, it’s your cut-off date and determines which property is labeled as community property vs separate property.

In sum, any property acquired between the date of marriage and date of separation is community property and belongs to both of you, whereas all property acquired outside of this timeframe is separate property and belongs to either you or your spouse.

Amicable Separations

At first glance, the date of separation seems simple enough to identify. In amicable situations, you and your spouse may have come to an agreement on a specific date when you expressed or communicated the intention to no longer live as a married couple. For example, you may have worked with a mediator to create a written agreement that clearly establishes the date when both of you decided that the marriage was over. In cases like this, the courts will consider your expressed written date as the date of separation.

California Laws Governing Date of Separation

Typically when a couple starts the divorce process, one spouse moves out their belongings and resides in a new dwelling during the separation. The court can use the details of this move to determine the relevant date of separation.

However, situations are not always that cut and dry. For example, couples may start the divorce process, yet continue to live together in the same household for cultural reasons, to maintain stability for their children, or financial pressures, especially during the COVID-19 health and economic crisis.

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Changes to Separation Law

Before 2017, the California Supreme Court classified married couples living together as not legally separated. They ruled on a case in 2015, citing a 1870s statute that married couples must be “living separate and apart” in order to determine the date of separation. In this case, even though the couple essentially decided to end their marriage, they continued to live together, affecting their division of property based on the relevant date of separation.

However, California’s Governor in 2017, Jerry Brown, signed State Bill 1255 to directly abrogate In re Marriage of Davis. This new law adds Section 70 to the Family Code, which, effective January 1, 2017, defined “date of separation” as “a complete and final break in the marital relationship . . ., 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.” The court must take into account “all relevant evidence” in making the determination.

Therefore, since January 1, 2017, married couples no longer need to live apart to be separated. Instead, your separation date is based on the communication, actions, and behavior that you express to end your marriage. For instance, you send an email to your spouse on April 1, 2020, saying that “the marriage is over,” and begin to conduct yourself as if the marriage is over (e.g. move out, start dating, split finances, open new bank accounts). In this scenario, April 1, 2020 could be considered your legal date of separation. As a result, you may have serious trouble proving that your date of separation is on October 1 of the same year if you’re looking to assert a community property interest in an asset acquired after April. In order to help your case, you would need to present other factors to the Court showing that you and your partner reconciled after the email was sent in April. For example, you may have continued marriage counseling in order to save your marriage, and that you decided to separate again in October.

Best Practices for Your Divorce

When aiming to establish a date of separation, you should express your intention in writing, and conduct yourself accordingly. In the eyes of the law, you can live in the same home, but can’t outwardly or publicly be affectionate, hold each other out as married partners, go on recreational trips together, or attend marriage counseling sessions. Such behavior works against the intent of Family Code section 70 and can work against you in your quest to establish a clear date of separation.

The good news is that, if you are looking to end your marriage, you can kick off the process without having to move out. Generally speaking, if your goal is to keep as much interest in the community property as possible, then you want to establish your date of separation as the latest date possible. If you are looking to avoid carrying over incurring debt as a married couple due to frivolous spending by your spouse, then you should aim to establish your date of separation as soon as possible.

Of course, there are gray areas that need a deeper investigation to cut to the truth of the matter. If you have questions about the details of your case and would like to review them carefully to achieve your divorce goals, reach out to us—we’d be happy to help walk you through the details.

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10 responses to “How is the Date of Separation Determined in California?

  1. Divorce finalized. Wife left home Oct, 2018 and has not paid any bills nor helped with mortgage. Now wants equal equity split of home. Filed “Date of Separation” is 10/01/18. Is she entitled to 50% of current equity or is her half determined by equity value at “Separation Date”.

    1. Hi Aaron – the community property’s interest in the house is measured at the time of settlement or trial. What she may or may not be entitled to, as well as any reimbursements owed to you (or the community), can be a little complicated. Feel free to call me to discuss more.

  2. Separated and completely separated households (I moved out, he stayed in marital rental house) and separated finances/bank accounts almost 2 years ago but did not begin divorce proceedings due to lack of time (no major assets; left almost all household items because it was easier to buy new than to separate and move). Now looking to file paperwork; do I base things (i.e., FL-150, 2 months’ paystubs, 2 years’ tax returns) off of my current information or information at date of separation? I cannot find an answer to this question.

    1. Hi JB – I’d be happy to help you with this question. Feel free to book a consultation with me using the “Schedule a Consultation” button at the top of the page.

  3. A business property was acquired 4 months before separation .. 10 years later what is wife entitled to? Husband has done improvements on property and it’s a commercial warehouse .

    1. Hi Merlyn – technically, if a property is purchased during marriage (prior to separation), it is presumed to be a community property asset. However, what occurs for the 10 years afterward can impact the community property interest (ie. if separate funds were used to improve the property, etc).

  4. Separated june 2020 and spouse moved back to Australia in Oct 2020. All of the communication is documented. I’m looking to buy a house and I’m being told my mortgage companies that i need a quit claim deed signed by the spouse in order to get loan. Is that necessary if the spouse has moved out of the US after separation?

    1. Hi Sam – yes it is most likely necessary since you are technically still married. Even though your date of separation may have been established with her moving out of the US, but you are still married, and must go through divorce proceedings to revert back to being single. Before purchasing a new home, you should also confer with a family law attorney to make sure that the home will be your separate property post-separation, and that the community would not own any interest in your new purchase.

  5. My wife filed for divorce June 2020 when I was making $80k a year, I moved out August 2020. We split time with the kids 50/50. In 2021 I earned $200k and I’m pacing a little more this year. We have not officially gotten divorced but plan to move forward with it this fall. We’ve been separated since August 2020. She earns $100k a yearly. Is this going to be based on my $80k earning or $200k earnings?

    1. Hi David – temporary support may be based on current income figures, however, permanent spousal support is based on the Family Code 4320 factors, one of which is marital standard of living. Therefore, a permanent spousal support order would be based on your respective incomes and marital standard of living during the marriage. On the other hand, any child support orders would be based on current respective incomes.

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