What is the Date of Separation in California Divorce and Why Does It Matter?
One of the first questions a divorce lawyer will ask when you come in for your initial consultation is, "What is your date of separation?"
Why is this date so important if you're divorcing your spouse, anyhow?
Well, the "date of separation" can significantly impact your rights and obligations in your divorce proceeding. The court is tasked with dividing equally your community assets and debts.
What is the date of separation?
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. You are not responsible for credit card debt incurred by the other party after that date.
Additionally, once you have separated in terms of California family law, your earnings are no longer considered community (joint) property. The date of separation also determines the length of your marriage, which may impact your spousal support obligation or entitlement. Why? The length of the marriage is one of the guiding posts for determining the length of spousal support.
How is the date of separation determined?
California legislature enacted a law in 2017 that ended the requirement for one spouse to move out of the family residence in order to establish the date of separation.
Section 70 has been 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.
You got it. The date of separation has to do with intent and action. Your date of separation is determined when one or both of you indicated that you wanted a divorce, and that statement was not later contradicted. Example: You get in a fight. You scream, "I want a divorce!" The next day, the two of you agree to try marital counseling to make your marriage work. A date of separation has not occurred.
Note: You don't have to move out of the marital home for separation to occur. But, if you live in the same residence, your conduct must indicate an intent to end the marriage for the claimed date of separation to count.
Need to modify your date of separation?
If you and your spouse disagree on the date of separation (DOS) and have been unable to resolve the issue, you can fill out a form to request that the court resolve the “date of separation” before you move on to issues like spousal support and/or property division. It’s a good idea to get this issue out of the way since you might have trouble dividing property and debts and or determining the length of spousal support (if applicable) if you don’t have a DOS. (Community property is property acquired from the date of marriage through DOS.)These forms allow you to ask the judge to first make a decision on the date of separation before you tackle the other issues related to your divorce.
- Responsive Declaration to Request for Order (FL-320) Bifurcating Date of Separation and Requesting Separate Trial
- Instructions for Bifurcating Date of Separation
- Request for Order Bifurcating Date of Separation and Requesting Separate Trial (FL-300 Template)
- Declaration in Support of Request to Bifurcate the Issue of Date of Separation and Request for a Separate Trial Date
- Blank Responsive Declaration to Request for Order (FL-320)
- Blank Application for Separate Trial (FL-315)
- Proof of Service by Mail (FL-335) Request to Bifurcate Date of Separation
- Proof of Personal Service (FL-330) Request to Bifurcate Date of Separation
- Response to Application for Separate Trial (FL-315) Bifurcating Date of Separation and Requesting Separate Trial