How does a California Court determine the “Date of Separation” in a divorce case?

Date of Separation

The “date of separation” is very important for community property purposes, because property acquired after the date of separation is not subject to the legal presumption that it is community property. Similarly, debts incurred by a married person after the date of separation are not necessarily community obligations.

The date of separation may not be the date of the parties’ first fight because many marriages have long, rocky periods that never result in divorce. It’s not necessarily the same day that you slept in a different room or even when the parties started living apart because many happily married couples never even move in together. It’s not the date that the parties decided to book an appointment with a marriage counselor, but it could be the date that the parties decided to stop marriage counseling.

The date of separation is the first day that there is a complete break down of the marriage. This is often an issue of fact for the Court to decide. The Court has to consider all relevant evidence concerning two events:

  1. One spouse tells the other that s/he intends to end the marriage, and
  2. The actions of the spouse wanting the divorce are consistent with his or her intent to end the marriage.

Do we have to live separate and apart to be separated?

One case suggested that parties could be separated physically while still occupying the same dwelling if the evidence demonstrates “unambiguous, objectively ascertainable conduct amounting to a physical separation under the same roof”. Marriage of Norviel (2002) 102 Cal.App4th 1152,1164. The California Supreme Court then decided a case called Marriage of Davis in 2015 and decided that for the purpose of establishing the date of separation, a couple could not be “living separate and apart” when they live in the same residence. The California Legislature hated this ruling and amended Family Code §70 to allow the Court to “take into consideration all relevant evidence.” The legislature specifically stated that they intended to “abrogate” the Norviel and Davis decisions.

What about a trial reconciliation? Does that re-set the clock?

The term “complete and final breakdown” contained in Family Code §70(a) would indicate that a failed “trial reconciliation” would reset the date of separation. This was the legal question posed to the California Supreme Court in a case called Marriage of Jaschke in 1996, however, the Court denied review and depublished the appellate case. If your estranged spouse has acquired significant debts during the separation or you have acquired significant assets during the same time, moving back in together (even for one night) might have a huge effect on a divorce. This is unfortunate, because the law should encourage parties to explore reconciliation. A brief period of reconciliation should be allowed without fear that your spouse is just trying to get you on the hook for credit card debts or that s/he wants to share half of your earnings after separation.

Local Divorce Attorneys Are Here to Help

Divorce and separation is rarely ever a simple situation. At Hughes Law Group, we’ve helped hundreds of couples navigate through this tough situation to achieve peace of mind on the other side. If you have specific questions about your case, please reach out to the Sacramento divorce attorneys at Hughes Law Group for expert, professional guidance.

Divorce Date of Separation