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:

1. One spouse has communicated to the other the intent to end the marriage.
2. 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:

1. 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.

2. 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: California is a community property state, meaning that assets and debts acquired before separation are shared 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.

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.

For personalized legal advice, contact a California family law attorney to assess your specific situation and ensure your date of separation is properly established.