When filing for divorce in California, spouses must determine their date of separation. California courts use this information to establish a concrete date of one or both spouses’ intent to discontinue the marriage. In other words, the date of separation establishes the official “break” in the marital relationship.
Determining the Date of Separation
Unfortunately, pinpointing the exact date of intent to separate is tricky. As a result, spouses commonly litigate over the date of separation during divorce proceedings. Therefore, the court must utilize two complimentary tests to establish a date of separation for divorcing couples.
First, the objective test typically identifies the date a couple started living apart with the intent of not reconciling their marital relationship. For this test, the court will look for evidence of a spouse displaying unambiguous objectively ascertainable conduct displaying intent to discontinue the marriage. However, note that even spouses still occupying the same house can nevertheless practice physical separation. Therefore, the court will take this into consideration as well.
Second, the court uses the subjective test to support their objective findings. With a subjective test, the court considers the subjective intent of each spouse to end the marital relationship. More specifically, the court will consider each spouse’s conduct to decide when the marriage “ended”.
Implications of the Date of Separation
The court does not identify a date of separation simply to pinpoint the end of a relationship. Instead, they utilize this information to make important decisions regarding the division of the marital estate as well as spousal support.
Division of Property
California is a community property state. This means that all property acquired during a marriage is split 50/50 upon divorce. On the other hand, California Family Code Section 770 defines separate property as that owned prior to the marriage or acquired during marriage by “gift, bequest, devise, or descent”.
Once a couple separates, the community property rights of each spouse stop accruing. In other words, starting on the date of separation, all property acquired by either party becomes separate property. As a result, the court will evenly divide each party’s community property owned ONLY up to the date of separation unless otherwise agreed upon. Then, each spouse will be awarded 100% of their respective separate property based on the date of marriage as well as the date of separation.
Spousal Support
In addition to determining property interests, the date of separation helps calculate the parties’ duration of marriage. The duration of marriage plays a key factor in determining the award of long-term spousal support. For example, 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.
Put simply, this law states that the court will retain jurisdiction over spousal support unless otherwise agreed upon for marriages of 10 years or longer. This power is important as many spouses revisit spousal support with modification requests due to changed circumstances. Hence, accurately determining the date of separation in California divorce can have a huge impact on spousal support. Plus, it can even affect the duration of the award.
A People’s Choice Can Help
If you are going through or considering divorce, make sure you clearly identify your date of separation. Also, note that if you and your spouse reconcile after the official date is established, you will have to set a new one.
We know legal proceedings require a lot of work. If you need help with your DIY divorce, contact A People’s Choice to learn how we can help. We provide low-cost, attorney-free assistance with completing and filing your legal documents for California divorce. Call us at 1-800-747-2780 to start today.
My husband is self employed & is making the least amount of money he’s ever made in 20 years. However, he is expected to double his income next year with added accounts. Could he move out now to establish a date of separation before the money is received to avoid paying a higher spousal support? We’ve been having trouble for 3 years but still live together as a family.
Possibly. Spousal support is typically predicated on past earnings consistent with the family’s lifestyle. It would be hard to predict what a judge would order until the actual hearing on the matter.
I asked for for a 90 day separation and he left 3 days later moving into an apartment and signing a 1 year lease. He asked for very little furniture and paid no community bills or dept……..he filed for divorce a year later.
Now he is saying he didn’t feel the marriage was over until a few weeks before he filed-
I say it was when he signed the lease………we were never intimate after he left and saw only 1 counselor for maybe a month after he left.
You should file a response and indicate in your documentation the actual date of separation which is when he left.
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??
The date of separation could be important and affect other rights you may have. The court will have to make a determination on this.
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?
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.
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?
I would say it depends on whether or not you were reconciled.
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…..
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.
Hi, my wife and I decided on getting a divorce last year in November. She moved to Houston TX and she told me that she would file over there since it would be cheaper for us. She said that she had to wait six months in order for her to file. It’s been past six months and I’m still waiting for the divorce papers. I’ve tried texting her about it, but she hasn’t responded to my text. I’m trying to buy rental properties, but I’m afraid that she’ll go after it. I’m trying to see how can I get a date of separation, so I can send to her, but I have a feeling that she’ll sit on it. What should I do?
File for divorce yourself if that is the path you want to take.
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?
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.
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.
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?
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.
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”?
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.
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).
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.
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 ?
If you were living separate lives that sounds like a reasonable conclusion.
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.
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.
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?
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.
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.
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.
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?
When you file you will indicate a separation date. Obviously she can dispute it as well. Call us for help. 800-747-2780
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.
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.
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.
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.
You’ve just given me the info I was searching for. That helped me a lot.