Identifying Your Date of Separation in California

Flicker, Kerin, Kruger & Bissada LLP

Dissolving a marriage is a complex and emotional process, fraught with numerous legal considerations. A critical aspect of divorce proceedings is the determination of the “date of separation.” This key date can significantly impact various facets of the divorce, including asset division, spousal support, and more. In California, understanding and establishing your date of separation is essential for navigating the divorce process efficiently and effectively.

What Is the Date of Separation?

The “date of separation” in the context of divorce refers to the point at which one or both spouses  intend to permanently end the marital relationship and start living their lives separately. It is a crucial concept because it marks the end of the community property regime, where earnings and assets acquired thereafter are generally considered separate property of the acquiring spouse.

Interpreting and determining the date of separation has  evolved through legislation and case law. Historically, establishing this date could be complex, especially for couples who continue to live under the same roof but lead separate lives. However, California law clarifies that living in separate residences is not an absolute requirement to determine the day the couples separated.

According to the California Family Code Section 70, the 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:

  • One spouse expressed their intent to end the marriage to the other spouse.
  • The spouse’s behavior and conduct are consistent with their intent to end the marriage.

The court will consider various factors to determine if these criteria are met, including physical distance, financial distance (like opening separate bank accounts or ceasing to pay for each other’s expenses), and social changes (how the spouses present themselves to family and friends). This definition allows for a more nuanced understanding that physical separation alone is not the sole factor in determining the day you separated.

Impact of the Date of Separation on Divorce Proceedings

Your separation date has profound implications for the divorce process:

  • Division of Property: California is a community property state, meaning that any income earned and assets acquired by either spouse during the marriage are considered joint property and must be divided equally in the event of a divorce. The date of separation thus delineates the end of the period during which assets are accumulated as community property.
  • Spousal Support: The duration of the marriage can affect the length of time spousal support is payable. Since this date can mark the end of the marital period, it impacts spousal support calculations.
  • Debts: Similarly to assets, debts incurred by either spouse up to the day they separated are generally considered community obligations and are divided equally. Debts incurred after this date are usually the responsibility of the individual who incurred them.

Making Your Date of Separation Obvious

Given its significance, clearly establishing the day you separate is crucial. Here are several steps you can take to make this date evident:

  • Document Your Decision: As soon as the decision to separate is made, document it. This could be through a written statement or by sending an email or text message to your spouse indicating your intention to end the marriage.
  • Change Your Living Arrangements: If possible, one spouse should move out of the marital home; however, it is prudent to first consult an attorney before vacating the marital home. If cohabitation continues, establish separate living areas within the home and cease sharing the same bed and performing errands, chores or any other tasks for the other spouse (i.e. doing their laundry).
  • Separate Finances: Open individual bank accounts and start managing your finances separately. Cease pooling your income, and ensure that personal expenses are paid from individual accounts.
  • Notify Friends and Family: Informing close friends, family, and possibly even your children about the separation can help corroborate the day it began.
  • File for Legal Separation: Filing for legal separation or divorce in California is a definitive way to establish the day your relationship ended. This process legally documents the end of your relationship and can temporarily address issues like property division and custody arrangements.

Given the complexities involved in determining and proving the day you separated, it is advisable to consult with a family law attorney as early in the process as possible. 

Professional Legal Guidance for Separation Date Family Law Matters

The date of separation is a pivotal factor in California divorces, impacting everything from asset division to spousal support. Given its importance, both parties must take steps to establish and document this day clearly. Understanding the legal implications of the date of separation and taking proactive measures to define it can help mitigate disputes and ensure a smoother divorce process. The family law specialists at Flicker, Kerin, Kruger & Bissada LLP are prepared to help clients throughout the Bay Area identify their date of separation and streamline the divorce process.

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