Date of Separation
Your date of separation plays an important role in your divorce proceeding. The date of separation can be the difference between whether or not an asset is community property versus separate property. Another effect is that the date of separation determines whether a marriage is short term or of a long duration. Marriages of long duration allow spousal support to continue indefinitely until death or remarriage. Short term marriages terminate spousal support at one-half the duration of the marriage mark.
Determining the Date of Separation
Few areas of California law have gone through more uproar and change than the date of separation in a divorce. It used to be understood that a marriage separation date occurred when either the husband or the wife did not intend to continue the marriage and either of their actions were consistent with a final breakup in the marital relationship.
Marriage of Davis
In July of 2015, the California Supreme Court, in the Marriage of Davis, created a bright-line rule and made physical separation a necessity for there to be a separation. Although the Supreme Court left open situations where there could be an exception to that rule. Many family law lawyers, judges and our California legislature were not happy with this decision and in 2016, Governor Brown signed SB-1255 under “dissolution of marriage – date of separation.” As of the date this article is updated, SB-1255 is not yet officially the law. It will become the law on January 1, 2017.
California Family Code Section 70
The amended Family Code is to read: “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.”
The outcome is that we are kind of back to the way things were before the Marriage of Davis decision.
Factors Used to Determine Date of Separation
What does the family court look at when determining the marriage separation date in California? California divorce courts typically looks at each spouse’s living situation and whether or not the two of them are truly separated. Some of the factors the family court takes into consideration include whether the spouses continue to live under the same roof, continue to hold themselves out to the public including family and friends as married or separated, continue to merge their finances and support each other, file joint or separate income taxes, engage in sexual intercourse with each other, date others and, in general, whether their private conduct is consistent with a couple of people who have had a final and complete break in their marital relationship.
Facts Determine Date of Separation
When the issue of date of separation is litigated, the facts are everything. If the facts show, for example, that the husband and wife continue to eat dinner together at the family home, maintain a mailing address, engage in social events including vacations, and continue to behave consistent with a married couple, etc. those factors could be very important. Facts can come into evidence through testimony of either spouse, testimony of witnesses, or documents.
Multiple Separation Dates
Some cases have the unusual facts of a husband and wife who have more than one date of separation and therefore separation period. This happens when a husband and wife separate from each other and meet the factual test for the definition but then reconcile for a period of time, only to separate again. These types of cases are especially complicated because the decision that has to be made is whether or not there was only one date of separation, which is typically the last one, or whether or not to was more than one instance of the parties being separated from each other and therefore properties acquired during the various separation periods are or are not separate property.
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