Should I Stay or Should I Go? Date of Separation Laid to Rest **UPDATED**

One of the first questions a divorce attorney will ask you when you come in for your initial consultation is ‘What is your date of separation?’

Why is date of separation so important anyhow?

The “date of separation” is important and can have a significant impact on your rights/obligations in your divorce proceeding. The Court is tasked with dividing equally your community assets and debts. The date of separation marks the end date of the accumulation of community assets and debts. For example, after you “separate” you no longer continue to accrue a share of your spouse’s retirement and you are not responsible for credit card debt incurred by the other party after that date. Additionally, once you have ‘separated’ within the meaning of California Family Law, your earnings are no longer considered community (joint) property. The date of separation also determines the length of marriage, which can have major impact on your spousal support obligation/entitlement as the length of marriage is one of the guiding posts for determining the length of spousal support.

How is the date of separation determined?

Prior to July of last year, a party needed to establish an intent to end the marital relationship. They did not need to move out of the family residence to establish a date of separation. While this standard created substantial leeway for litigants and often led to protracted litigation on this issue – it gave parties a lot of flexibility. In many cases, parents may decide to live under the same roof for the stability of their children until the divorce is finalized. Many others find it to be financial untenable to separate households until support orders are in place or assets are liquidated to provide more access to cash.

In July, the Supreme Court of California announced a new bright- line rule about the date of separation in a case titled In re Marriage of Davis (“IRMO Davis”). In Davis, the parties married and had two children, born in 1995 and 1999. In June 2006, Mrs. Davis stated that she was “through” with the marriage. However, they continued to live together in the marital home with their children and shared all expenses equally. They continued to go on vacations together and have joint bank accounts. Mrs. Davis filed for divorce in December 2008, stating their separation was in June 2006. Mr. Davis responded saying their date of separation not until after she filed for divorce. The trial court found their date of separation was June 1, 2006, however, the Court reversed and the Supreme Court upheld the reversal stating that living separate and apart was an “indispensable threshold requirement.”

Now, in order to be considered “separated,” in addition to establishing an intent, you must physically move out of the marital home. This is a dramatic departure from current law as enforced.

How does this help/hurt you?

It creates clarity in an often contentious issue. Creating a bright line rule saves you the time, effort, and resources litigating the issue. Parties can ultimately end up spending more fees litigating an issue than the benefit of an earlier/later date of separation may get them.

On the other hand, requiring a party to physically move out does not reflect the realities of a family’s situation. For example, parties’ may continue living together after they have ‘broken up’ for reasons other than trying to work things out. Parties may stay living together for financial reasons. Not all parties have the financial resources, particularly those with children, to have two households. Parties may stay living together for religious reasons. It also may force parties’ to act sooner than they would otherwise.

Bottom line, if you and your spouse are separating, in order to avoid one of the many divorce pitfalls, it is essential to physically move out of the home to establish a date of separation. However, in light of the IRMO Davis hardline rule, it is expected that the legislature will act quickly to change this drastic change.

***UPDATE PLEASE READ*** The California legislature has enacted a new law that will go into effect on January 1, 2017 which no longer requires a spouse to move out of the family residence in order to establish date of separation.

Section 70 is added to the Family Code, to read:

(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.
(2) The conduct of the spouse is consistent with his or her intent to end the marriage.
(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.

**Please note that this blog pertains to existing California law. and is meant for informational purposes only. Please do not make decisions that will affect your future based on things you’ve read on our website. Instead, consult with a Certified Family Law Specialist – It doesn’t have to be us, but be sure to seek out sound legal advice that pertains specifically to the facts of your case.

Leave a Reply

Your email address will not be published. Required fields are marked *