• date of separation in california divorce

Date of Separation in California Divorce – Why is it Important?

What Determines the Date of Separation in California Divorce?

If you are considering filing for divorce in California, or in the process of doing so, you will have to decide the date of separation between you and your spouse. Why is it important to decide the date you and your spouse separated? To start, the date of separation establishes the intent of a spouse to no longer continue the marriage. The date of separation establishes a “break” in the marital relationship. The court uses the date of separation to determine each spouse’s community and separate property interests.

California Family Code section 760 defines community property as follows:

Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.

California Family Code section 770 defines separate property as follows:

Separate property of a married person includes all of the following:

   (1) All property owned by the person before marriage.    (2) All property acquired by the person after marriage by gift, bequest, devise, or descent.    (3) The rents, issues, and profits of the property described in this section.    (b) A married person may, without the consent of the person’s spouse, convey the person’s  separate property.

The community property rights of each spouse stops accruing once the parties have separated. The community property owned by both parties up to the date of separation in California divorce will be divided 50/50 (unless agreed upon otherwise). Separate property will be awarded 100% to the spouse in possession.

How the Court Determines the Date of Separation?

Determining the date of separation in California divorce may be tricky if it is not clear. It is not uncommon for spouses to litigate over the issue. The court will use two different tests to decide the date of separation if it is litigated between the parties:

Objective Test: When using the objective test, the court will decide when the couple started living apart with the intent of not reconciling their marital relationship. The court will look for evidence that shows whether a spouse displayed unambiguous objectively ascertainable conduct that he/she wished to no longer stay married.

Subjective Test: Though physical separation may suggest that a couple no longer intends to stay married, the court will consider the subjective intent of each spouse to seek to end the marital relationship. The court will look at each spouse’s conduct to decide when the “marriage ended.”

The court will look at findings under both tests to decide the legal date of separation in California divorce.

California divorce law is based on common law, and interpreted by case law through decisions of the  California Supreme Court, California Courts of Appeal, and Appellate Divisions of the California Superior Courts. A leading case that addresses the date of separation in California divorce is In Re Marriage of Manfer (2006) 144 Cal. App. 4th  925. In this case, both parties privately acknowledged that their marriage was over. The couple did not live together and held separate finances during a 9 month period. However, the couple resided with each other during the holidays and maintained the norm of “marriage” during this time. Upon the filing of marital dissolution, there was a high sum of money at issue all centering on the date of separation. The wife, who earned over a million dollars salary claimed the date of separation occurred prior to the 9 month period. The husband claimed that the date of separation occurred after the 9 month period which would classify the wife’s salary as community property. The trial court ruled for the husband’s claim of separation. Read more about a recent decision in California that changes the way couples determine their date of separation in a more recent blog post.

How Does the Date of Separation in California Impact Spousal Support?

The date of separation in California divorce helps figure the parties duration of marriage. Determining the duration of marriage is a key factor in deciding the award of long-term spousal support.

California Family Code section 4336 states the following regarding a long term spousal support duration:

Except on written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal separation of the parties where the marriage is of long duration. For the purpose of retaining jurisdiction, there is a presumption affecting the burden of producing evidence that a marriage of 10 years or more, from the date of marriage to the date of separation, is a marriage of long duration. However, the court may consider periods of separation during the marriage in determining whether the marriage is in fact of long duration. Nothing in this subdivision precludes a court from determining that a marriage of less than 10 years is a marriage of long duration.

Hence, accurately determining the date of separation in California divorce can have a huge impact on the court’s jurisdiction over spousal support in addition to the duration of the award.

If you are going through divorce, or thinking about divorcing your spouse, make sure you clearly identify the date of separation. If your spouse and you reconcile after the official date is established, you will have to set a new date of separation. Contact A People’s Choice for more information about filing for divorce in California.

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By |2018-01-18T15:47:34-07:00June 5th, 2015|Family Law|32 Comments

About the Author:

Sandra M. McCarthy, founder of A People’s Choice Inc., has worked exclusively in the legal field since 1976. She served as the 2004-2005 President of CALDA (California Association of Legal Document Assistants). She obtained a Paralegal Certificate from the University of California, Santa Barbara. During her career in the legal field, she has worked as a freelance paralegal, law office manager and paralegal studies teacher, and has co-authored numerous legal publications and written hundreds of self-help legal articles. As a registered Legal Document Assistant, Sandy is dedicated to providing affordable, low-cost, self-help document preparation services for California consumers in all 58 counties.

32 Comments

  1. Nicole Clasen February 22, 2019 at 2:38 pm

    My soon to be ex husband left our house May 2016 but would come back in fourth when he felt like it said it was his house and he paid the Bill’s. I filed for divorce June 2018 and he is fighting with me about the separation date, even though he want living in the home he still acted like my husband when I would see him until things got violent and I had to leave the house because he was coming home to take care of me. So in divorce papers I put the day I finally left but he is claiming it was Feb 2016. Which date is correct and why is he saying we seperated earlier does it benefit him from the divorce??

    • Sandy McCarthy February 24, 2019 at 8:09 pm

      The date of separation could be important and affect other rights you may have. The court will have to make a determination on this.

  2. Debra Harrington February 6, 2019 at 1:19 am

    My husband filed for legal separation 15 years ago, he would never sign the property agreement. I counter filed for divorce, and he would never sign the property agreement. So we have remained legally married this entire time. He refused to move out of the house, so I had to leave, and I raised and supported our disabed son without his support, and had to pay rent the entire 15 years because he would never agree to sell the house and divide the assets. How can the separation date be considered when not property agreement was ever made?

    • Sandy McCarthy February 7, 2019 at 6:16 am

      The separation date was identified in the paperwork you each filed. Are you still trying to complete this? If so, give our office a call.

  3. Robin January 23, 2019 at 8:01 pm

    After a few years of separation, I have filed for a legal separation, then a year later, decided to throw out the case with my husband’s consent before things were legalized. After 2-3 months later, I moved into “his” home(which is another of our few homes) due to an unforeseen circumstance, we lived together in that house for 1 year and 4 months or so until he moved back to “my” house-main house(joint property) a few months after much needed repairs were done. We were suppose to move into the main house together, but he changed his mind that he should just move into the house by himself. While living in “his” house, we ate together, went to places together, and vacationed together, but no photos taken.
    Considering a divorce now, he insists that the date of the separation has to be the date we have decided on the legal separation paper 7 years ago. I say it has to be last year when he moved into the main house, leaving me at “his” house.
    So what would be the legal date of separation?

    • Sandy McCarthy January 27, 2019 at 7:12 am

      I would say it depends on whether or not you were reconciled.

      • Robin February 8, 2019 at 3:55 am

        Would you please elaborate what you mean by whether we reconciled? Now?
        Since we lived together until last year again, wouldnt that wash away previous separation? We have filed joint income tax, amended other years’ income tax…..

        • Sandy McCarthy February 9, 2019 at 3:15 pm

          Yes possibly. If there is a dispute as to the date of separation,the court will get involved to make a final determination. Every situation is different.

  4. Lee December 29, 2018 at 4:58 pm

    We separated(not”legally”) on 12-21-2012…. We get along…..we have worked the kids schedule this whole time…we have our agreements…(only spousal support notarized)are busy lives pretty much got in the way of moving forward with divorce….. Will the court just grant us the divorce immediately? We have lived separately for around 5 years…. Do we have to wait 6 months?

    • Sandy McCarthy December 29, 2018 at 4:59 pm

      Typically in our cases the judgment is entered within a couple of months but the termination date where you both are considered single is not until six months following the date of service. Please give us a call at 800-747-2780 for help.

  5. Sylvia Roy November 27, 2018 at 12:52 pm

    My husband and I have decided he will move out on the first of the year. He has told me that he will leave with everything he brought into this house. His threat is intended to leave with everything including furniture that we have gotten in the past 10yrs. I live in California, if I served him a separation agreement before he starts loading his truck or even actually moves out would that prevent him from legally removing our stuff until an agreement of assets has been filed? The home is not part of our assets, my mother owns & lives with us in her home. I’m also trying to protect he possessions as well. I know I’ll need an attorney asap but I just need to know how to legally stop him now.

  6. LEZLI A COLLINS November 20, 2018 at 5:21 pm

    My husband just filed for separation, oct, 29, 2018. We were married 7/18/15. My mother became I’ll 12/24/15 & I tried to care for her and live with husband as well.. I also work full time and took family leave intermittently from 1/16 to 8/16. Then I hurt my knee and needed knee replaced so I went out on disability until 9/16. Since 1/2016, I have basically lived at my moms caring for her. She fell another time and it was easier to just stay with her to care for her instead of driving back and forth between houses.

    I moved to my mother’s to help care for her on 6/6/16. I returned to work the by 9^1/16.
    However since I moved out on 6/6/16, that’s when my husband put as separation date. I do not agree as I needed to be with my mom. We continued as a couple ever since. He knows why I moved to her home. The first he mentioned separating was after he wanted me to refi on his separate home in 9/20/18. I refused as I was not on deed of his home and did not want yo be liable as he is always saying he’s gonna stop paying on home. Plus, I do not agree to the regi. He will be paying more just to reduce his putts so he has spending money. In 2016 he retired and then paid cash for Corvette. Then in 2017 he got loan to buy s travel trailer. Both of those items he bought without me knowing about.
    My concern is what date fo I put in my response? 6/6/26 or 9/20/28? Any advice?

    • Sandy McCarthy December 1, 2018 at 3:30 am

      Unfortunately if we are not preparing your paperwork we would not be able to comment regarding your question. You may want to speak with a lawyer to get more direction if you are not planning on hiring a service like ours to help you.

  7. Gregg November 10, 2018 at 9:14 am

    If I send my wife an email stating the date of separation as I see it, when I think she stopped acting as a married wife is that legal as the official date of separation or dies she have to agree or “sign off on it”?

    • Sandy McCarthy November 13, 2018 at 8:28 pm

      Both parties must agree on date of separation unless the matter proceeds by default. Picking a date out of the air that you feel is when your wife stopped acting as a married wife does not seem to satisfy the legal requirements as date of separation. You may want yo speak with an attorney.

  8. Jay October 12, 2018 at 1:38 pm

    You make reference to needing to re-establish a new date of separation after a reconciliation. Are you aware of any successful arguments against that idea that support the idea of multiple dates of separation? The inequitable, double-dipping that takes place seems very unfair, especially in cases where a supporting spouse paid support, and then gets no credit for the time and has to split the property gained during an extended period of separation. (3 years).

    • Sandy McCarthy October 13, 2018 at 7:11 am

      You make a good point. I do not know what the case law is on this. If you and your spouse don’t agree on the issues and date of separation and separate property are contentious issues, I would talk to an attorney about that.

  9. sunita Murthy October 12, 2018 at 6:54 am

    Hi ,
    My husband served divorce papers on sept 17, 2015 . we stayed in the same house. We didnot talk to each other ,
    3 years case was dormant and stayed in different rooms with kids . Kids were very young 2ys,6 years. Now oct 11,2018 , he has proceeded with divorce . Should I put date of separation as “Sept 17 , 2015 ” if he agrees to that ?

    • Sandy McCarthy October 13, 2018 at 7:15 am

      If you were living separate lives that sounds like a reasonable conclusion.

  10. Diane August 15, 2018 at 11:08 am

    My husband had intercourse with me after he filed for divorce. He continued to sleep in the same bed with me until the other day. He continues to have dinner with the family as we are all still in the family home together with our two young children. On October 11th we hit our 10 yrs of being married. Trying to figure out if I might be awarded long term spousal support or not.

    • Sandy McCarthy August 15, 2018 at 2:22 pm

      Diane – I would recommend you file a Response and address these discrepancies. You can also file a motion for support. Contact us for help at 800-747-2780.

  11. TEE August 1, 2018 at 1:56 pm

    My ex was having an affair, when I found out I emailed the woman to tell her he was married. He moved out but continued to pay our household bills until we divorced a year later. He says the date is when I emailed his mistress but I disagree. Is our seperation date when he filed for divorce or when he started cheating, I found out and he left?

    • Sandy McCarthy August 2, 2018 at 9:32 pm

      The date of separation is typically when you stopped acting as a married couple.If that date is in dispute, the court may need to decide.

  12. Mely b July 1, 2018 at 11:01 pm

    I moved out of the house with the children in April of 2015. I have never given any indication that I wanted to continue the relationship. I have not filed divorce as of yet due to financial hardship. When would the courts in California determine to be the date of separation? I have receive no support from him for me or the kids who are now 19 and 17 at the end of this month.

    • Sandy McCarthy July 2, 2018 at 6:31 am

      You would most likely indicate the date of separation as the date you moved out. However it is unlikely you will get a retroactive order for support from that date. You should have filed for support right when you left.

  13. Val Jackson June 26, 2018 at 3:18 pm

    My wife said she was thinking of a divorce in February of 2017. We attended marriage counseling until it was exposed that she had an affair with someone at work. She declared that she no longer wanted to work on the marriage, although we continued to live in our house and parent our 7 year old daughter. On September 17th, she moved into our spare room and said any court would recognize us as separated. In October she quit wearing her wedding ring and in November told me to start dating other people. I separated our joint account in February and moved out in March of 2018. Would our separation date be viewed as September 2017?

    • Sandy McCarthy June 27, 2018 at 8:38 pm

      When you file you will indicate a separation date. Obviously she can dispute it as well. Call us for help. 800-747-2780

  14. patricia luster June 2, 2018 at 7:25 pm

    my husband filed for divorce and then changed his mind so i never responded or had a court date. the only papers i received are when he filed. today i received a notice the divorce was final. we have been living together the entire time.

    • Sandy McCarthy June 3, 2018 at 6:48 pm

      I would suggest you pull the court file to see what was filed. You may want to talk to an attorney if you feel you were misled to set aside the judgment.

  15. Sonia E Moran-Alonzo May 21, 2018 at 9:27 pm

    Is there a statue of limitations on reopening a divorce case?
    Due to wrong separation date which effects the amount of money I was awarded from his calpers account.

    • Sandy McCarthy May 21, 2018 at 9:32 pm

      You would have to ask an attorney about a statute of limitations but I would think if you both agree to the change we could simply help you modify the judgment. The QDRO would also have to be modified.

  16. Mirasol Jennings September 13, 2016 at 6:39 am

    You’ve just given me the info I was searching for. That helped me a lot.

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