DivorceFamily LawLaura Hassan

The Significance of the Date of Separation

In proceedings for legal separation or dissolution of marriage, the date on which a married couple deems to be separated is of great significance.

California uses the date of separation as the essential date for determining characterization of the parties’ assets and debts, and for determining spousal support rights.  This includes the principle that assets acquired, and debts incurred, by a spouse after the date of separation are generally considered the separate property/debt of that spouse.  In other words, all earnings acquired by a spouse after the date of separation are considered the separate property of that spouse.  Similarly, all debts acquired after the date of separation are considered the separate obligation of the incurring spouse. (Cal. Fam. Code § 771.)  Additionally, the length of a marriage can affect the duration for which a spouse will receive spousal support.  A marriage of ten years or more is considered to be a long-term marriage and may entitle a spouse to permanent spousal support.[1]

Determining the Date of Separation

While in theory, the concept of separation appears simple, the reality is that this issue can be very complicated.  For example, the recent Stay-At-Home Order issued by Governor Newsom as a response to the COVID-19 or Coronavirus pandemic has required families to remain at home.  This may be a pressure test on many married couples as it is inevitable that couples who have otherwise contemplated separation or divorce may feel compelled to pursue such an action as a result of increased tension that may ensue after spending days or weeks cooped up at home together.  Additionally, couples who previously decided to separate and live apart may feel duty-bound to continue to cohabitate as a result of the fear and uncertainty caused by the COVID-19 pandemic and their obligations to their minor children who, as a result of state and local orders, have been forced to stay home from school.  Now, what does this mean when one or both spouses decide to divorce or legally separate while they continue to live under the same roof?  The answer to this question will require a careful look at the Family Law Code.

Date of Separation Defined:

The “date of separation” is defined by Cal. Fam. Code § 70 as:

[T]he 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 the intent to end the marriage. (2) The conduct of the spouse is consistent with the intent to end the marriage.

Establishing the date of separation requires evidence that one spouse has expressed an intent to end the marriage and must have acted upon that intent. For example, while in a heated feud, one spouse tells the other that he/she no longer wishes to remain married to the other.  Is this sufficient to be considered a break in the marital relationship?  Not quite.  The spouse expressing his/her desire to be separated must also conduct himself/herself as someone who truly wishes to be separated from the other spouse. Does this mean that one spouse must physically move out of the family residence? Not necessarily.

Prior Law Regarding Separation:

Prior to January of 2017, determining the date of separation required the court to determine when the spouses commenced living “separate and apart.”  In 2015, the California Supreme Court decided the matter of In Re Marriage of Davis(2015) 61 Cal.4th 846 [“Davis”], whereby the court was faced with the task of determining the date of separation.  The court held that living in separate residences was a threshold requirement for separation under Cal. Fam. Code § 771, coupled with the subjective intent to end the marital relationship.  This, however, posed a problem for most couples given the increasing housing costs and other financial factors that essentially left couples with no other choice but to continue living under the same roof.

New Law Regarding Separation:

In January of 2017, Senate Bill 1255 went into effect that amended the Family Code which allowed couples to be considered “living separate and apart” while still living under the same roof for purposes of establishing a date of separation as a precursor of divorce.  As a result of SB 1255, the Legislature enacted Cal. Fam. Code § 70, which amended Cal. Fam. Code § 771.  The amended Code further revoked the Davisdecision requiring a spouse to physically move out of the family residence for purposes of establishing a date of separation.

Multiple Separation Periods:

Frequently, spouses may actually separate and resume living together a number of times, even when one or both spouses previously expressed an intent to end the marriage.  This situation complicates narrowing down the date of separation given that Cal. Fam. Code § 70 requires a complete and final break in the marital relationship.  It is unclear whether a period of separation that meets the statutory criteria of an expressed intent to end the marital relationship combined with conflicting conduct can be used to establish the date of separation if the parties briefly reconcile.  There’s a split of authority deciding this issue which would require the parties to provide a detailed factual showing to establish the elements of “separation.”

As discussed above, the date of separation can be a very important issue that will determine how courts characterize certain assets and debts as well as determining whether and for what duration a spouse is eligible to receive spousal support. Every case has its complications and those divorcing or intending to seek a divorce should consult with an attorney to help evaluate their case.

If you would like to know more about the significance of the date of separation in a dissolution action, give us a call for a complimentary consultation.

[1]The topic of spousal support can be complicated and involves an in-depth analysis. Additional information on spousal support may be found on our website in our published article entitled “Spousal Support.”

Laura Hassan


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