As a family law practitioner, one of the most common questions I hear at an initial consultation is when and how someone is “separated.” Many people incorrectly believe that they have to have a Judgment of Legal Separation to be separated. Spouses are separated after the “date of separation.” The date of separation demarks, generally speaking, the endpoint for the creation of community property – whether income, assets or debt. Family Code section 771(a) states that, “[t]he earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, while living separate and apart from the other spouse, are the separate property of the spouse.”

Factors Determining the Date of Separation

The case law sets forth the factors for determining the date of separation – and it has changed significantly in recent years. For many years, the date of separation was defined by whether or not a couple met a two-pronged test: an objective and subjective analysis. The inquiry is “whether the parties’ conduct evidences a complete and final break in the marital relationship.” Marriage of Baragry (1977) 73 Cal.App.3d 444, 448.

Conduct was the objective portion of the test – would an independent observer looking at the two individuals believe they were a married couple, or just two separate, independent individuals. Case law identified factors such as whether a couple was living together, filing joint income tax returns, having “marital relations,” sharing bank accounts, taking vacations together, celebrating holidays/birthdays/anniversaries together, or attending couples counseling.

Communication was the second, subjective portion of the test. Courts looked at the couples’ interactions with each other. Specifically, “that condition when spouses have come to a parting of the ways with no present intention of resuming marital relations.” Makeig v. United Security Bk. & T. Co. (1931) 112 Cal. App. 138, 143. See also Marriage of Hardin (1995) 38 Cal. App. 4th 448, 452. One person had to communicate clearly and unequivocally to the other that the marriage was over. Any discussion about possibly reconciling generally meant the couple was not separated.

Not surprisingly, there can be a significant amount of dispute over whether one person in fact said to the other that the marriage was over. Sometimes it is simply a difference in perception/memory of a particular conversation (denial being a powerful force). Sometimes it is a “gaming” of the fact that there was no hard evidence to support the claim. There may be emails, letters, or third party witnesses who can substantiate the claim by one party that they told the other spouse that the marriage was over. But often there isn’t. The continuation or end of the community can have significant implications for the property division, especially if the parties have a dispute of months or years; income and new assets (or debts) may be acquired during the contested period. Parties can also request valuation of assets as of the date of separation. Marriage of Imperato (1975) 45 Cal.App.3d 432.

In 2002, the Appellate Court in In re Marriage of Norviel held that a couple had to be living in separate residences in order to be separated. In re Marriage of Norviel (2002) 102 Cal.App.4th 1152. Many couples live in the same residence while divorcing out of economic necessity. In my experience, most family lawyers and judges viewed Norviel as misguided, and declined to follow it, continuing instead to follow the existing two-prong test established by a line of other appellate decisions. Thus parties who lived under the same roof could be “separated” if their words and actions supported the idea that there had been a complete and final break in the marriage.

The Supreme Court’s Davis Decision: Separate Residences are the Key . . . Maybe

In 2015, the California Supreme Court in In re Marriage of Davis (2015) 61 Cal.4th 846, held that a couple had to be living separate and apart, in separate residences, to be separated. The decision followed Norviel, and held that the Date of Separation was no earlier than when a couple was living in separate residences. It was a bright-line rule, which arguably would reduce litigation over the date of separation. Footnote 7 however, included a comment that left open the possibility that couples could be living in the same residence, and separated. This comment potentially undid the bright-line test. The Court stated, “Under the facts presented by this case, we have no occasion to consider, and expressly reserve the question, whether there could be circumstances that would support a finding that the spouses were ‘living separate and apart,’ i.e., that they had established separate residences with the requisite objectively evidenced intent, even though they continued to literally share one roof.” Davis at 864.

Legislation Addresses the Davis Decision

The Davis decision caused an immediate uproar among family law attorneys and a push for legislation to establish a more nuanced test for the date of separation. Several versions of legislation were discussed, and ultimately in July 2016, the Governor signed the bill creating Family Code Section 70 and amending Family Code sections 771, 910, 914 and 4338.

The new Family Code section 70 states:

(a) “Date of separation” means the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following.

(1) The spouse has expressed to the other spouse his or her intent to end the marriage; and

(2) The conduct of the spouse is consistent with his or her intent to end the marriage.

(b) In determining the date of separation, the court shall take into consideration all relevant evidence.

(c) It is the intent of the Legislature in enacting this section to abrogate the decisions in In re Marriage of Davis (2015) 61 Cal.4th 846 and In re Marriage of Norviel (2002) 102 Cal.App.4th 1152.

This legislation takes effect on January 1, 2017, so this definition will apply to all cases pending on that date.