The Importance of the Date of Separation

In July of 2015, the California Supreme Court decided a case regarding the date of separation of a divorcing couple. In California, the date of separation from a marriage determines whether property going forward from that date is separate, and whether property acquired during the marriage is community.

In the Davis case, the Court determined that an “…indispensable threshold requirement” of the date would be when the parties began living at separate residences.

This decision did not improve date-of-separation determinations, but made them more problematic. Many couples live in separate residences due to job or other obligations, but consider themselves married. Thus, their earnings and accumulations should be considered community property, but with the Davis decision it would make them separate property. Many other couples in the process of getting a divorce remain in the same family residence, because they have nowhere else to go, can’t afford to make payments on other residences, etc. Also, if the family residence is a community asset, both have an equal right to reside in it. Thus, according to the Davis decision, these people are still married, and their earnings and accumulations are community property.

To alleviate the problem, last year the California State Legislature enacted a new Section 70 to the California Family Code.

In part, Section 70 states:

(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

  1. The conduct of the spouse is consistent with his or her intent to end the marriage.
  2. (b) In determining the date of separation, the court shall take into consideration all relevant evidence.
  3. (c) It is the intent of the Legislature in enacting this section to abrogate the decisions in In Re Marriage of Davis and In re Marriage of Norviel.

This legislation went into effect on January 1, 2017.

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