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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