January 23, 2017
Date of Separation in California
What is the legal “date of separation” in California, and why is it important for divorcing
couples? The date of separation generally refers to the date the couple’s marriage “ended”, and
is used to determine property rights and spousal support.
Impact of Date of Separation
California Family Code Section 760, defining community property, provides, “Except as
otherwise provided by statute, all property, real or personal, wherever situated, acquired by a
married person during the marriage while domiciled in this state is community property.”
California Family Code Section 770 defines separate property as follows:
Separate property of a married person includes all of the following:
(1) All property owned by the person before marriage.
(2) All property acquired by the person after marriage by gift, bequest, devise, or
(3) The rents, issues, and profits of the property described in this section.
Community property rights terminate on the date of separation. Absent a written
agreement stating otherwise, community property owned by both parties only up to the date of
separation will be divided 50/50. Separate property goes entirely to the party who owns that
The date of separation is also used to determine long term spousal support, because one of
the factors used to determine that is the length of the marriage. California Family Code Section
4336 provides, in relevant part,
Except on written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal separation of the parties where the marriage is of long duration. For the purpose of retaining jurisdiction, there is a presumption affecting the burden of producing evidence that a marriage of 10 years or more, from the date of marriage to the date of separation, is a marriage of long duration. However, the court may consider periods of separation during the marriage in determining whether the marriage is in fact of long duration. Nothing in this subdivision precludes a court from determining that a marriage of less than 10 years is a marriage of long duration.
Since the duration of marriage has a direct impact on long term spousal support, the date
of separation is very important in determining the amount of the long term spousal award.
Accurately determining the date of separation in a California divorce can have a huge impact on
the court’s jurisdiction over long term spousal support.
Tests For Determining Date Of Separation/Change in Law
Historically, the courts in California have applied two different tests in deciding the legal
date of separation in a marriage: an objective test and a subjective test. Under the objective test,
the court looks to the date the couple started physically living apart, with the intent of ending the
marriage. Since physical separation alone does not necessarily mean the couple intends to
divorce, the court also looks for clear, independently verifiable conduct from the individuals that
establishes the marriage is over. Under the subjective test, the court considers evidence from the
divorcing couple as to when they considered the marriage to be over. For couples in high-dollar
divorce cases, there is an inherent incentive of one party to argue the earliest (or latest) possible
date of legal separation.
Obviously, the courts have an easier time applying the objective test to the date of
separation than the subjective test. Possibly because the lower courts were issuing inconsistent
rulings in applying the subjective test, the California Supreme Court drew a bright line rule in In
Re Marriage of Davis (2015) 61 Cal.4th 846, which held that the parties had to live in different
residences to be considered living separate. While specifically acknowledging that the statute, as
interpreted in the case, could work hardships in specific cases, it held that,
“… a bright-line rule…promotes fairness by providing a measure of predictability
to the parties and their attorneys, as well as clear guidance to judges. It reduces
the potential for manipulation of a more elastic standard by the higher earner in
situations of significant disparity of spousal income. It provides separate property
classification of earnings and accumulations where the need is greatest because
each spouse is maintaining his or her own separate place of residence. It retains
the presumption of community property for earnings and accumulations acquired
during marriage during a period of time likely to be prior to the institution of court proceedings and any court order of support, thereby protecting the lower
The California Supreme Court tacitly acknowledged a change in the law might be
necessary, and practically invited same from the Legislature when it concluded, “The
requirement of separate residences for purposes of section 771(a) promotes reasonable public
policy interests, but if there are other policy concerns that now advise the adoption of a different
rule, it is up to the Legislature to craft one.”
Subsequent to the holding in Davis, and as a direct result of it, the Legislature changed the
law of how legal separation is to be determined by the courts in California. Specifically, the
California Legislature passed, and Governor Brown signed into law, SB 1255, on July 25, 2016.
The preamble to the Bill acknowledges:
Under existing case law, a spouse is required to be living in a separate residence in
order to be considered living separate and apart from the other spouse for
purposes of characterizing the earnings of the spouse.
This bill would define “date of separation” for purposes of the Family Code to
mean the date that a complete and final break in the marital relationship has
occurred, as evidenced by the spouse’s expression of his or her intent to end the
marriage and conduct that is consistent with that intent. The bill would direct a
court to take into account all relevant evidence in determining the date of
SB 1255 goes on to modify California Family Code Section 70 to now read as follows:
(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
(2) The conduct of the spouse is consistent with his or her intent to end the
(b) In determining the date of separation, the court shall take into consideration
all relevant evidence.
(c) It is the intent of the Legislature in enacting this section to abrogate the
decisions in In re Marriage of Davis (2015) 61 Cal.4th 846 and In re Marriage of
Norviel (2002) 102 Cal.App.4th 1152.
SB 1255 essentially overturned the Davis decision, and returned the subjective test of date
of separation to the law. (Sections 771, 910, 914 and 4338 of the Family Code were also
modified, to reflect the change in Section 70.)
It is likely that the change in the law will benefit divorcing couples who need it the most:
those who cannot afford to live “separate and apart” under two roofs, but are still planning on
divorcing. Since there is no “bright-line” rule for date of separation, it is important that, if you
are planning to divorce, you discuss your separation arrangement as soon as possible with your
divorce attorney to determine whether the courts would consider you to be “separated” or not.
ABOUT LINDA LINDSEY
Linda A. Lindsey is a life-long resident of the Inland Empire and she is the sole proprietor of Lindsey Law. She is not only a licensed attorney in the State of California and the United States – Central District Court of California; she also holds an M.B.A. and has over 25 years of successful for-profit and non-profit business experience. She believes that all persons should have access to justice and even with a busy law practice she contributes her time and energy at local legal aid agencies. Ms. Lindsey provides legal representation in the areas of family law, bankruptcy and contracts. Lindsey Law is dedicated to providing its clients with quality legal representation from inception to conclusion. To learn more about Ms. Lindsey and Lindsey Law, please visit http://lindseylawoffice.net
Posted on 02/07/2017 at 01:10 PM