What Exactly is My Date of Separation?
A Petition for Dissolution must set forth two dates. One is the date of marriage, the other the date of separation. The date of marriage is rarely in question. The date of separation, however, can become a point of contention.
The Significance of the Dates
In general terms, community property is all property acquired during the marriage; that is, from the date of marriage through the date of separation. Separate property is generally defined as property owned by one of the parties prior to the date of marriage and property acquired after the date of separation. Separate property also includes property acquired at any time as a gift or via inheritance. These definitions, by the way, include both assets and responsibility for debts.
If you bought a winning lottery ticket one month after your spouse moved out of the home and said things were over, you’d want to be sure you established an accurate date of separation. Otherwise, you may have to share your winnings! Likewise, if your spouse made an extravagant purchase after they said things were over and moved out of the home, you’d want to be sure to establish the date of separation so that you would not be held responsible for this debt.
Against this backdrop, one can certainly understand the importance of the date of separation.
Historical Context Behind Date of Separation in Divorce
For many years, family law attorneys, in discussing with their clients the date of separation, may have inquired about things such as the date in which their heart or mind the purpose of the marriage was irretrievably broken. Of course, sometimes things were simple – along with whatever reason(s) led to the breakdown of the marriage, one of the parties had also moved out of the former family home. This generally made for an undisputed date of separation.
During tough financial times, we often encountered situations where the parties were still residing under the same roof, perhaps out of economic necessity, or maybe for purposes of co-parenting minor children and allowing them to maintain a sense of normalcy. This would sometimes make it slightly more complicated to come up with a date of separation. Under such scenarios, we would maybe make inquiry about the last time the parties had marital relations or the date that one spouse moved to the spare bedroom, the date they opened separate bank accounts, etc. These dates could be construed as triggering events for the date of separation.
Along Came Davis
In 2015, the California Supreme Court issued its landmark decision in the case Marriage of Davis, 61 Cal 4 th 846. This controversial case rocked the family law community. Davis held that parties would not be deemed separated while they were still residing under the same roof. The Supreme Court went to great measures to acknowledge its understanding of the fact that people who no longer desired to be married to one another might still be under the same roof for perfectly legitimate reasons.
The Supreme Court engaged in what is known as statutory construction. This is the process by which courts interpret and apply legislation. Sometimes interpretation is required, other times the words of a statute have a plain and straightforward meaning. The Supreme Court discussed the relevant history surrounding the phrase “living separate and apart.” The conclusion reached was as stated above – unless the parties were living separate and apart, they were not separated as that term is defined for purposes of setting forth the date of marriage and date of separation.
Legislative Intervention – Redefining the Date of Separation in Divorce
The Davis decision was short-lived. In 2017, the legislature enacted California Family Code section 70 to give new definition to “date of separation”. The legislature also expressly indicated the purpose of this newly enacted statute was to repeal the Davis decision.
With a minor upcoming amendment, Family Code section 70 will now provide (a) “Date of separation” means the date that a complete and final break in the marital relationship has occurred, as evidenced by 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.
(b) In determining the date of separation, the court shall take into consideration all relevant evidence.
Current State of Date of Separation in Divorce
By enacting Family Code section 70, the legislature essentially returned us to the pre-Davis era. Trial courts are vested with discretion to consider all facts of a case in resolving date of separation issues. A couple can once again be living under the same roof but still be considered separated.
Family law matters are complicated. A great deal may be at stake. Contact one of the experienced attorneys at Cornwall Family Law to schedule a consultation to discuss your legal issues and concerns. Also, like and follow our Facebook page to get the most up to date information!
