What is the date of separation and why is it important?

Flicker, Kerin, Kruger & Bissada LLP

The “date of separation” in a dissolution case is a complete and final break in the marital relationship between spouses. The statute related to the date of separation was amended recently, and the new language is effective as of January 1, 2020. This new definition can be found in §70 of the Family Code.

In order for there to be a complete and final break in the marital relationship, there must be evidence of both of the following: “(1) a 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.”

In making its determination of the date of separation, §70 of the Family Code states that a court shall take into consideration all relevant evidence. Thus, determining the date of separation is particularly fact specific. This means that a court has discretion in making its determination based on the facts of each case.
Some of the factors that a court may consider in determining the date of separation include the following:

  • Physical separation of the Parties
  • Celebrating holidays together
  • Attending social functions together
  • Taking vacations together
  • Engaging in sexual relations
  • Comingling funds
  • Financially supporting each other
  • Attempts to reconcile

However, it is important to note that because of the broad language of §70, the court has discretion to consider all relevant evidence, which may or may not include the above factors and does include other factors.

The date of separation is a highly relevant part of a dissolution case because earnings and accumulations of a spouse after the date of separation are considered separate property. Per §771 of the Family Code, property acquired after the date of separation is separate property of the spouse who acquired it. Thus, in order for a court to properly characterize property as community property, separate property, or quasi-community property, the date of separation must be determined first.

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