Evolving definitions of the ‘date of separation’ in California

In a community property state such as California, a determination of the date of separation is an important part of the division of community assets and debts. In California, assets and debts acquired before the marriage and after separation are usually considered to be the separate asset or obligation of the person acquiring it. Family Code Sections 770 and 771. As a result, a determination of the date of separation can have any impact on whether an asset or debt belongs to one party or to both.

How Do Courts Decide the Date of Separation?

The date of separation is defined to mean the date a "complete and final break in the marital relationship" has occurred. Family Code Section 70(a). In deciding the date of separation, the courts consider both an objective and a subjective test as follows:

Objective Test: The court decides when the couple started "living separate and apart" with no present intent to reconcile their marital relationship. Family Code Section 771(a); Marriage of Hardin, 38 Cal. App. 4th 448, 451 (1995); Marriage of Manfer, 144 Cal. App. 4th 925, 930 (2006). 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. For example, physically living separate and apart, not having sexual relations with each other, not commingling funds, or an announcement to family can be unambiguous displays of intent to end the marriage. Manfer, 144 Cal. App. 4th at 934. Note, separate residence is no longer required after Family Code Section 70 was enacted to abrogate the California Supreme Court's decision in Marriage of Davis, 61 Cal. 4th 846 (2015). It is, however, still an objective indication of the end of the marriage.

Subjective Test: The court considers the subjective intent of each spouse to end the marital relationship. Hardin, 38 Cal. App. 4th at 451; Manfer,144 Cal. App. 4th at 930. The court will look at each spouse's conduct to decide when the "marriage ended." This test considers one or the other's party's decision to end the marriage and how they communicated with and treated the other spouse.

Three years ago, the California Supreme Court added a new wrinkle that defined the term "separate and apart" to mean literally living in separate residences. See Davis.

Although Davis drew a clear line as to when separation occurred, the ruling overlooked some of the reality that separating and divorcing couples faced. For example, many couples cannot afford to live at separate residences, either because the cashflow is not there to support two households or the family residence is upside down on the mortgage. In addition to the financial burden, there are also the logistical burdens of childcare and transportation for the children that induce couples to remain in the same house after separation. Requiring couples to live at separate residences lest they lose their opportunity to declare separation added an unnecessary burden to couples already going through a difficult time.

In response to Davis, the state Legislature passed Senate Bill 1255, which Gov. Jerry Brown signed into law in July 2016. That legislation addressed the interpretation of "living separate and apart" and abrogated the Supreme Court's ruling in Davis. SB 1255 added Section 70 to the Family Code. The first part of the section defines the "date of separation" to mean the date that a complete and final break in the marital relationship has occurred. The date is evidenced when one spouse has expressed to the other spouse his or her intent to end the marriage and the conduct of the expressing spouse is consistent with the intent to end the marriage. Family Code Section 70(a).

The second part of Section 70 provides that in determining the date of separation, the court must take into consideration all relevant evidence. Family Code Section 70(b).

The final subsection expressly states the Legislature's intention to abrogate the decisions in Davis and In re Norviel, 102 Cal. App. 4th 1152 (2002). Family Code Section 70(c).

Based on Section 70, it is clear the legislature has decided that a physical separation is not necessary, as long as there is a final break in the marital relationship that is expressed and acted upon. Accordingly, even if the couple stays in the family residence -- whether one moves into the guestroom or the guesthouse -- the important thing is to make a declaration to the other party that you intend to separate, announce to friends and family, and hold yourself out to the public as separated in order to solidify the date of separation for the purpose of cutting off claims that property acquired after the date of separation is community.