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Family LawDate of Separation

March 15, 2021
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In California family law there are several important legal concepts. One of the most important is the “date of separation.” The date of separation is primarily relevant to (1) the fact that California is a community property state, and (2) California’s spousal support law.

First, relating to property, California law holds that during the life of the community all acquired property, with a few specific exceptions, are presumed to be community in character. (California Family Code Section 760.) Community assets, as opposed to “separate property” ones, are to be divided equally between spouses upon divorce. (California Family Code Section 2550.)

Second, relating to spousal support, the length a supported spouse receives spousal support may be directly related to the length of the marriage. Specifically, in marriages of less than 10 years in length, the general rule is that the supported spouse should become self-supporting in half the length of the marriage and thus only receive spousal support for that time period. (California Family Code Section 4320(l).) The length of the marriage is duration of the community, or the life of the community.

So, the pivotal question is how do you measure the life of the community?

The start of the community is easy and rarely at issue– it is the date of marriage. The end of the life of the community is– you guessed it– the date of separation. And, it is sometimes not clear at all.

The California Family Code defines the date of separation as “the date that a complete and final break in the marital relationship has occurred.” (California Family Code Section 70.) The California Family Code also details that the following evidence can be used to support a that date: (1) One “spouse has expressed to the other spouse the intent to end the marriage;” and/or (2) “The conduct of the spouse is consistent with the intent to end the marriage.” (Id.) In practice often is conflicting evidence, especially as a couple may have struggled for months or even years with whether to permanently end the marriage or reconcile.

Given what could be substantial financial consequences from an earlier or later date, as explained above, having a dispute over the date of separation is not uncommon. If the parties are unable to settle or agree to a compromise date, a court will be hearing about the behavior of the parties during the time period in dispute. Such evidence could include the language and tone of communications between the parties; what, if any, gifts were exchanged; whether the parties took vacations together; intimate behavior or an absence thereof; whether the parties attended marital counselling; what the parties represented to others; etc. One factor that is not determinative is whether or not the parties are living in separate residences, which is a practical rule in high cost of living California. (California Family Code Section 70(c).) Thus, the answer to when is the date of separation is fact-laden and specific to each case.

If you would like advice about how to end your marriage to avoid a date of separation dispute or help in determining a date or whether one has occurred already, please contact our office to set up a consultation.

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