The date of separation in California divorce is a point of contention for many separating spouses. For example, spouses often disagree on exactly when the intention to separate came to fruition. Nevertheless, the date of separation is an important piece of information the court uses to make certain decisions about the divorce. For instance, the date of separation may impact property division or spousal support rulings.
Some people may not appreciate pressure from the court to identify the date of a relationship’s termination. However, understanding the history behind the laws can provide a new perspective on its importance.
California Divorce Laws on Date of Separation
California Family Code 70 provides the definition of the date of separation in divorce:
“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 the intent to end the marriage.
(2) The conduct of the spouse is consistent with the intent to end the marriage.
The court then uses the phrase within other laws it directly affects. For example, California Family Code 2622 states:
debts incurred by either spouse after the date of marriage but before the date of separation shall be divided as set forth in Sections 2550 to 2552, inclusive, and Sections 2601 to 2604, inclusive.
Within this statement, it is fairly obvious how the date of separation affects the division of debt upon divorce. Put simply, debt incurred after the date of marriage but before the date of separation will be split 50/50 between the spouses. Thus, the contention behind the date of separation in many divorces is understandable; in reality, this information could have a large impact on the money one spouse must give another.
How Did We Get Here?
In Re Marriage of Hardin (1995)
Perhaps the earliest significant case in recent history focusing on the date of separation in California divorce is In re Marriage of Hardin (1995) 28 Cal.App.4th 448. During this case, the court relied too heavily on only objective evidence when determining the date of separation. Specifically, this evidence was primarily based on the physical residence of each party.
However, the court failed to consider subjective evidence, including the fact that Doris and Victor Hardin still spent family time together after moving apart. Additionally, the couple’s assets remained community property, and Doris continued handling and signing documents on behalf of the family business. Even personal handwritten cards written by Victor included phrases like “your loving husband”! This information implied that the Hardins’ marriage did not really end on the original “date of separation”. Thus, after she appealed, the court granted Doris a new trial to re-determine a new date of separation with both objective and subjective evidence in mind.
In Re Marriage of Davis (2015)
More recently, In re Marriage of Davis (2015) 61 Cal.4th 846, redefined the meaning of the date of separation. In the original divorce case, Keith Davis listed the date of separation for his marriage to wife Sheryl as July 1, 2011. This was the date on which Sheryl moved out of the family residence. On the other hand, Sheryl listed the date of separation in her petition as June 1, 2006. This was the date on which she had announced she was “through” with the marriage. Additionally, Sheryl had insisted on this day that the couple begin separating their personal expenses and collaborate solely for the purpose of the household and their child.
Ultimately, the court accepted July 1, 2011 as the date of separation according to the idea that “physically living apart is ‘an indispensable threshold requirement’ for separation under section 771(a)” (Source). However, this ruling quickly became a controversial one. One year later, Senate Bill No. 1255, often called the “anti-Davis” legislation, added Section 70 of the California Family Law Code, as outlined above. This revision accounted for less financially stable families who remain living together after separation to save on housing costs. Thus, Davis was important in defining the “date of separation” in a fair and representative manner for all types of families.
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