Understanding California Family Code § 70: Date of Separation in Divorce Cases
Quick Answer: Under California Family Code § 70, the date of separation is the date a complete and final break in the marital relationship occurred. Two things must both be true: one spouse has told the other they intend to end the marriage, and that spouse's conduct is consistent with that intent. Spouses do not have to live in separate homes to be separated. The date matters because it affects property division, spousal support and other financial issues.
Divorce is a complex and often emotionally charged process, and one of the most critical legal determinations in any dissolution of marriage case is the date of separation. In California, this date plays a pivotal role in property division, spousal support, and other financial matters. Under California Family Code § 70, the law provides a clear definition of what constitutes a date of separation between spouses.
What Is the Date of Separation Under California Family Code § 70?
California Family Code § 70 defines the "date of separation" as the point at which a complete and final break in the marital relationship has occurred. This is determined by two key factors:
One spouse has communicated to the other the intent to end the marriage.
The spouse's actions are consistent with their intent to separate.
This means that a spouse cannot simply claim that the marriage was over in their mind; they must also demonstrate this intent through their behavior and actions.
How Courts Determine the Date of Separation
Under Family Code § 70(b), courts will consider all relevant evidence when determining the actual date of separation. This can include, but is not limited to:
When the spouses stopped living together.
Whether they continued to engage in marital activities (e.g., joint finances, family events, vacations).
Whether they told friends, family, or colleagues about the separation.
Whether they filed for divorce or legal separation.
Changes in financial decisions, such as closing joint accounts or filing taxes separately.
No single factor is determinative; instead, courts will analyze the totality of the circumstances to determine when the marriage was truly over.
Legislative Intent: Overruling Prior Case Law
A significant part of Family Code § 70(c) is its express intent to abrogate (overrule) two key cases:
In re Marriage of Davis (2015), 61 Cal.4th 846 – In this case, the California Supreme Court ruled that spouses must be living in separate residences to establish a date of separation. This strict rule created significant issues, especially for couples who, due to financial constraints, continued living under the same roof while going through a divorce.
In re Marriage of Norviel (2002), 102 Cal.App.4th 1152 – This case also emphasized physical separation as a key factor, making it harder for spouses to claim they were separated while still cohabitating.
By enacting Family Code § 70, the California Legislature eliminated the requirement for physical separation, recognizing that many couples may continue to live in the same home due to financial, logistical, or family-related reasons. The focus is now on intent and conduct, rather than merely physical living arrangements.
Why the Date of Separation Matters in Divorce
The date of separation is crucial in divorce proceedings because it affects:
Division of Property: The community estate, meaning property and debts acquired during the marriage before separation, is generally divided equally. However, anything earned or accumulated after the date of separation is considered separate property.
Spousal Support: The duration of the marriage (determined in part by the date of separation) can impact eligibility and the length of spousal support (alimony).
Retirement and Investments: The date of separation determines how much of a 401(k), pension, or investment portfolio is classified as community property versus separate property.
Key Takeaways for Divorcing Spouses
You don't have to move out to be “separated.” Your intentions and actions are more important than physical distance.
Be mindful of your behavior if you want to establish a clear date of separation—actions such as continuing to share finances or attending events as a couple can blur the lines.
Keep records of important conversations and financial changes that demonstrate separation intent.
Consult an experienced family law attorney to ensure your date of separation is clearly established and legally supported.
Frequently Asked Questions
Can we be separated while living in the same home? Yes. § 70 abrogated In re Marriage of Davis and In re Marriage of Norviel, so the focus is intent and conduct.
Is telling my spouse I want a divorce enough? Not by itself. Your conduct must also be consistent with ending the marriage.
Is income earned after separation community property? Generally no. Earnings and accumulations after the date of separation are separate property. The community estate built during the marriage is generally divided equally.
Why does the date matter for spousal support? It sets the length of the marriage. A marriage of 10 years or more is presumed long, which affects how long support can last.
Conclusion
California Family Code § 70 provides clarity and flexibility for spouses going through a divorce by focusing on intent and conduct rather than physical separation. This law ensures a fairer determination of separation dates, particularly for spouses who cannot afford to live apart immediately. If you are considering divorce, understanding this law is essential to protecting your rights and financial interests.