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Determining Your Date of Separation

Date of Separation

In January of 2017, the California Legislature passed a law amending the Family Code allowing a couple who is still living under the same roof to be considered “living separate and apart” for purposes of establishing a date of separation prior to filing for divorce.  Section 70(a) of the Family Code defines “date of separation” (i.e. the “complete and final break in the marital relationship”) as occurring when:

  1. One spouse has expressed to the other an intent to end the marriage, and
  2. The actions of that spouse are consistent with their intent to end the marriage.

This amendment to the Family Code revoked the decision in the case of In re Marriage of Davis (2015) 61 Cal.4th 846, holding that there can be no date of separation if the parties still live together.  The Legislature reasoned that there are many reasons a couple may continue to reside together after separating, whether it be for consistency for their children or that housing prices are too cost-prohibitive to relocate.

This change in the law is particularly important for couples in the Bay Area who might find the cost of replacing one home with two, or leaving a rent-controlled apartment or wanting to stay in a particular school district.  In fact, the date of separation may be a more important benchmark than a date of divorce because once a couple is “separated” there is no longer accumulation of community property or community debt. It is also a large factor used for the calculation of spousal support.

Determining the date of separation for a divorcing couple may be contentious, and it is highly fact-driven.  Couples that continue to behave like a married couple, even after one party has claimed they want a divorce, may not actually be legally separated if they continue to attend events together, maintain joint finances, and remain intimate.  Given the critical nature of this issue in determining rights and responsibilities, we encourage you to contact us if determination of your date of separation is, or may be an issue.

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