Date of Separation: Changes to the California Family Code

Date of Separation: Changes to the California Family Code

A couple’s wedding day is an important date to remember. If the marriage ends in divorce, then the date the couple actually split is also significant. In fact, the California Family Code contains provisions about the date of separation. However, that code changed significantly in 2017.

What is the date of separation?

This might seem like a simple term, but the legal meaning can be complicated. The new California Family Code Section 70 states:

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.

For example, Ted tells Mary he wants a divorce on December 12, 2018. However, they continue living together, share bank accounts, and even plan their annual vacation to Hawaii. A court will consider all relevant evidence when determining the legal date of separation. A judge may decide Ted and Mary had not satisfied both (1) and (2) noted above on December 12, 2018.

Why is the date of separation important?

It is the date beyond which a married couple’s income, debts, and so become separate property.

For example, still considering Ted and Mary, Ted gets a huge windfall on December 13, 2018. During the divorce proceedings, he claims it is his separate property because the date of separation was December 12. Prior to the change in 2017, a court may not agree with Ted, since Ted and Mary did not meet the “living separate and part” requirement.

How and why did the law change?

In 2015, the California Supreme Court handed down a decision in a divorce matter titled In re Marriage of Davis. The decision stated that spouses must be living in separate homes for the date of separation to apply.

However, on July 25, 2016, a bill was signed into law that countered that decision. Section 70 was added to the California Family Code, clarifying that date of separation was to be decided using the tests mentioned earlier in this article.

Let’s consider a different scenario for Ted and Mary. Ted does tell Mary he wants a divorce on December 12, 2018. He remains in the home but separates his financial and personal matters from Mary. From that point on, they behaved more like roommates than husband and wife. A court may consider December 12 to be their legal date of separation.

Simple terms may have unwanted consequences

The legal date of separation can make a huge difference in how your divorce plays out. Talk to an attorney about your divorce as soon as possible.

Judy Burger is a California Certified Family Law Specialist, and founder of the Law Offices of Judy L. Burger. Please call our offices at 415-293-8314 to set up an appointment with one of our attorneys. We assist clients along the Northern to Central California Coast.