Determining Marital Separation in California

In 1986 Husband [H] married Wife [W].  In May of 2012, after 26 years of marriage, H moved out of the family home with his personal possessions.  He rented an apartment nearby, and occasionally interacted with W.  They continued to maintain an amicable relationship, but never tried to reconcile. 

Twenty-seven months later, in August of 2014, H filed his petition for dissolution of marriage.  He stated the date of separation was in May of 2012 – the day he moved out of the family home.  W contended the date of separation was in August of 2014 – the day H filed for dissolution, because they still maintained a friendly relationship, even if they weren’t intimate partners.  Since the parties could not agree on a separation date, the trial court had to make a determination based on the actions of the parties.

The trial court determined that the date of separation was when H moved out of the family home, in May of 2012.  The parties were no longer living together and they did not have access to each other’s house. (H had given his key to the family home back to W when he moved out and refused to give his apartment key to her.)  H’s actions showed his clear intention that the marriage was over.  W appealed.

The Appellate Court agreed with the trial court.

In California, all income, property and/or debts acquired during a marital separation are considered the separate property of the party who acquired them.  Therefore, it is very important for the actual separation date to be determined.  Often the separation date is agreed to by the parties, and no issue is presented to the court for determination.  However, when the parties cannot agree, then the family trial court must make the decision.

In 2015, in the case of In re Marriage of Davis (2015) 61 Cal.4th 846 the Supreme Court of California required both spouses to be living apart for there to be an actual separation for a divorce.

Prior to 2016, this code provided that “[t]he earnings and accumulations of a spouse … while living separate and apart from the other spouse, are the separate property of the spouse.”  In 2016, the state legislature changed the clause “after the date of separation of the spouses” to “while living separate and apart from the other spouse.”  Also, at the same time, the legislature added a definition for the date of separation.  “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.”  The state legislature deliberated abolished the holding in In Re Marriage of Davis that “the [Legislature] intended the statutory phrase ‘living separate and apart’ to require both separate residences and accompanying demonstrated intent to end the marital relationship.”

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