Determining a Separation Date under CA Law (Family Code Section 70)

In California divorce cases, an accurate date of separation is essential for the court to make determinations regarding separate and community property interests as well as other key issues. In 2015, the California Supreme Court issued a decision in the Marriage of Davis case, stating that a “date of separation” for the purposes of a divorce case must involve both an intent to end the marriage and the spouses living in separate residences. This decision sent shockwaves through the family law community, as we know that many spouses may want a divorce while still residing under the same roof. Spouses may decide against a physical separation prior to divorce for many reasons, including finances and childcare. The decision in Marriage of Davis seemed to state that there would be no date of separation for such couples.

Fortunately, the California legislature took steps to rectify and clarify the situation. On January 1, 2017, Family Code Section 70 went into effect, specifying the requirements for a date of separation. These requirements include:

  • A spouse expressed their intention to end the marriage to the other spouse; AND
  • That spouse’s conduct was consistent with the expressed intent to end the marriage.

It is important to note that the new law mentions no requirement that the spouses live in separate residences in order for there to be a date of separation.

During a marriage, the property acquired is considered to be community property and will be divided 50/50 between the spouses. Any property owned before or after the marriage will be considered separate property and each spouse will retain their own separate property. The courts consider the “break” in the marriage to be the date of separation for the purposes of property distribution.

Say that you believe you were separated and you had to purchase a new car because your old car broke down. You purchase the car in your name only and assume you will be able to keep it without reimbursing your spouse. If your spouse successfully argues that your date of separation was after the car purchase, the court may consider the car to be community property that will need to be divided, so you may have to pay your spouse for half of the equity in the vehicle. This is only one example of how the date of separation can affect your divorce case.

Find Out How Our Orange County Family Law Attorneys Can Assist You

The family lawyers at the law office of Razai & Nefulda, APC know how to present evidence of the true date of separation to protect your rights. We also know that family laws are always changing and we have a full understanding of new developments and how to apply them to your case. If you are considering divorce, please do not delay in contacting our office to discuss your situation. You can schedule a consultation by calling our office in Orange at 714-663- 9900 or in Newport Beach at 949-222-5381. Also, feel free to contact us online.