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Date of separation: why does it matter and how is it determined?

On Behalf of | Jul 29, 2022 | Divorce |

You’ve decided it’s time to divorce. Maybe you’ve communicated that fact to your spouse and maybe you haven’t. Perhaps one of you has already moved out—perhaps you’re still living together. When the divorce is final, your marriage will be legally ended, but at what point does it end in fact? The question is more important than you may realize.

The date of separation can have a big impact on the divorce

When the divorce process begins, one of the things that must be dealt with is property division. Since California is a community property state, all assets and liabilities acquired during the marriage (with a few possible exceptions) are considered community property, with each spouse owning a 50% interest in them.

“During the marriage” is the key phrase here, as it is defined by the time between the date of marriage and the date of separation. Identifying the date of separation is necessary to determine what is, and is not community property. If something was acquired before the date of separation, it is community property—if it was acquired after, it is not.

How is the date of separation determined?

As recently as a few years ago, California did not consider a couple legally separated as long as they were living together. But then Family Code Section 70 was enacted, changing the law and the circumstances by which the date of separation is calculated.

The date of separation now means the date on which a complete and final break of the marriage occurred. As evidence of that date, the court can look to any intent one spouse has expressed to the other to end the marriage. It can also consider any conduct by a spouse that is consistent with an intent to end the marriage. And finally, it can take into account any other evidence that may be relevant to the date of separation determination.

The date of separation will affect the property to which you are entitled and the debts for which you are liable. For assistance figuring out what your date of separation is, or will be, speak with a professional who is experienced in California Family Law.


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