Date of Separation

Intent

The date of separation may be significant to a number of different issues in family law matters. An understanding of what is required to establish a date of separation can be very helpful in minimizing litigation involving the determination of this important date. The date of separation is distinct from a Decree of Legal Separation. The date of separation is utilized when calculating the length of the marriage and many property issues. The date of separation is essentially the end of the relationship. A Decree of Legal Separation ends the marriage and is a “marital status” in the same way a Decree of Dissolution and being divorced is a “marital status.”

The date of separation must be addressed in terms of two different time periods. The date of separation is decided differently depending on whether the separation occurred: before or after January 1, 2017. On January 20, 2015 the Supreme Court decided In re: Marriage of Davis. This case added a requirement to the definition of separation. Under the Davis case, the parties must be “living under separate roofs” to be separated (subject to a qualifying footnote). The California legislature passed SB 1255 which, effective on January 1, 2017, states:

"SECTION 1. Section 70 is added to the Family Code, to read:

70. (a) “Date of separation” means the 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 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.

(b) In determining the date of separation, the court shall take into consideration all relevant evidence.

(c) It is the intent of the Legislature in enacting this section to abrogate the decisions in In re: Marriage of Davis (2015) 61 Cal.4th 846 and In re: Marriage of Norviel (2002) 102 Cal.App.4th 1152.

Essentially, this statute eliminates the ‘living under a separate roof’ bright line test for the date of separation. Thus, the law as of January 1, 2017, will essentially be the same as it was prior to the ruling in In re: Marriage of Davis. Even after January 1, 2017, living in the same home is a relevant factor in determining the date of separation.
 

Family Law Infographic - In re: Marriage of Davis

The date of separation may be relevant to many issues including but not limited to the following:

  • length of a spousal support order
  • characterization of certain assets
  • valuation dates of certain assets
  • liability for debts
  • characterization of income (separate v. community)
  • characterization and/or allocation of stock options
  • characterization and/or allocation of retirement plans
  • characterization and/or allocation of income, commissions, bonuses, and deferred compensation
  • liability for tax
  • reimbursement/credit for expenditures
  • charge for use of community assets
  • breach of fiduciary duty
  • misappropriation

Often there is a disagreement as to when the parties actually separated. The date of separation can be the subject of a lengthy and expensive trial. The date is determined by a variety of factors including each party’s actions and words. The determination of the date can be difficult and reasonable people (including judges) may disagree. Significant conflict and attorneys fees can be avoided by understanding exactly what constitutes the date of separation and taking the appropriate action to establish the date. After a party takes action that establishes a date of separation, a party cannot take any action inconsistent with being separated without jeopardizing the establishment of the date of separartion. An undisclosed intention to separate does not constitute a separation. The laws related to the determination of the date of separation are designed, in part, to make certain that if a separation has occurred, the fact of separation is so clear that each party will logically interpret the events as constituting a separation.

The "Date of Separation" should not be confused with "Legal Separation" or "Decree of Legal Separation." The "Date of Separation" is explained here. Most appellate cases indicate that there can be only one "Date of Separation." "Legal Separation" is a legal marital status, like divorce, which is established through a Judgment.

Date of Separation Timeline

Date of Separation Timeline

 

There are often several potential dates of separation. The actual date of separation is determined by the intent, words and actions of the parties.

Often there is a disagreement as to when the parties actually separated. The date of separation can be the subject of a lengthy and expensive trial. The date is determined by a variety of factors including each party’s intent, actions and words. The determination of the date can be difficult and reasonable people (including judges) may disagree. Significant conflict and significant attorney's fees can be avoided by understanding exactly what constitutes the date of separation and taking the appropriate action to establish the date. After a party takes action that establishes a date of separation, a party cannot take any action inconsistent with being separated without jeopardizing the established date of separartion.

An undisclosed intention to separate cannot be the basis of a separation. The laws related to the determination of the date of separation are designed, in part, to make certain that if a separation has occurred, the fact of separation is so clear that each party will logically interpret the events as constituting a separation. Generally, there can be only one date of separation.

Events Potentially Relevant to the Date of Separation

If the date of separation occurred after January 1, 2017, it is addressed as follows:

Events Potentially Relevant to the Date of Separation

 

If the date of separation occurred before January 1, 2017, the date of separation most likely has the additional requirement of living under separate roofs. However, even during this period, the court has the discretion to eliminate the "living under separate roof" requirement.