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Date of Separation and your Divorce

California uses the date of separation as the essential date for determining property interests; property acquired by a spouse after the date of separation is considered to be that spouse’s separate property, while property acquired before the date of separation is community property. The date of separation can also be a factor in determining whether the marriage is a “long term” marriage thereby changing the duration a party will pay or receive spousal support.

Due to the importance in property rights and spousal support, historically brought about lengthy disputes and litigation. Was it just the intent of the party? What could be a bright line- hence and easy way for the court to determine the “date of separation?” The California Supreme Court decision in (In re Marriage of Davis (2015) 61 Cal.4th 846 [352 P.3d 401, 189 Cal.Rptr.3d 835].) brought about that easy “bright line” rule as to the date of separation. The court determined that when Family Code section 771 stated: “living separate and apart” referred to a situation in which at least one spouse has the subjective intent to end the marital relationship and the spouses are living in separate residences. The requirement that the spouses were living in separate residences was a dramatic divergence from what many considered to be existing law.

The Davis decision was thought discriminatory; at least to parties that due to financial difficulties could not support two households on the income that previously barely supported one household. Of course, other couples had “separate” but lived in the same household, (separate bedrooms?) for the benefit of their children. These couples, at least under Davis, had not separated, did that mean they could not divorce while sharing housing expenses.

In response to the discriminatory nature of the Davis ruling SB 1255 was signed into law on July 25, 2016. Effective January 1, 2017 this new law adds Section 70 to the Family Code, which, will define “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.

Although requiring physical separation seemed to provide increased certainty as to when married persons would be considered “living separate and apart,” one of the primary criticisms was that the decision resulted in “disparate treatment based on a family’s economic status”, hence Section 70. It therefore appears that a more pragmatic approach will necessarily be followed by the courts. Living separate does not necessarily mean that you must leave the marital home. Making arrangements that show an intent to end the marriage can be shown in other ways that simply moving out. Of course, moving out and not sharing the keys to the new home could still be the bright line that many couples can use and show the court.

Proper computation of the date of separation has significant consequences in your divorce. Don’t allow a miscalculation to cost you money. Make sure that the proper evidence is found, is properly prepared and submitted to the court to prove your position. Set up an appointment with an attorney at Strategic Law Command. We can help to ensure the you do not lose benefits in your divorce.