In California, the date of separation is the date a complete and final break in the marital relationship occurred. Under Family Code section 70, that break requires two things: one spouse told the other spouse they intended to end the marriage, and that spouse’s conduct was consistent with that intent.
For Orange County spouses and couples dealing with divorce or other family law issues, getting this date right can affect whether earnings and property are treated as community or separate property, how long the marriage lasted for spousal support purposes, and how a contested case unfolds. This guide explains the California definition, the case law and factors courts consider, how disputes over the date are decided, and how the date should be reported on divorce forms.
What Does Date of Separation Mean Under the California Family Code?
Section 70 of the California Family Code defines the date of separation as the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following:
- The spouse has expressed to the other spouse the intent to end the marriage.
- The conduct of the spouse is consistent with the intent to end the marriage.
The statute adds that, in determining the date of separation, the court shall take into consideration all relevant evidence. No single fact controls, and no checklist is written into the law.
As first enacted, the statute said the spouse had expressed “his or her intent” to end the marriage. A 2019 amendment, effective January 1, 2020, changed the wording to “the intent.” The two-part test itself stayed the same.
Two points follow from the text. First, only one party has to decide the marriage is over. The state’s self-help site puts it plainly: you don’t both have to agree on the date.
Second, words alone are not enough. A spouse who says “I want a divorce” and then keeps living as a married person, sharing finances and attending family events as a couple, may not have reached a final break.
How the Davis Case and Case Law Changed the Rule
Section 70 was added by Senate Bill 1255 and took effect on January 1, 2017. It was a direct response to a 2015 decision of the California Supreme Court.
In In re Marriage of Davis (2015) 61 Cal.4th 846, the wife claimed a separation date of June 1, 2006, even though the spouses lived in the same home until she moved out in July 2011. The court concluded that “living separate and apart” under Family Code section 771 required the spouses to live in separate residences. Under that rule, spouses sharing the same house generally could not be separated, however separate their lives had become.
The Davis case followed earlier case law. In re Marriage of Norviel (2002) 102 Cal.App.4th 1152 had treated physical separation as a threshold requirement.
The Legislature disagreed. Section 70(c) states that it is the intent of the Legislature to abrogate both Davis and Norviel. Since 2017, separate residences are strong evidence of a final break, but they are no longer required.
Factors Courts Use to Determine the Date of Separation
California courts look for objective conduct, not private feelings. A useful way to think about it is objectively ascertainable conduct amounting to a final break: actions that other people could see and that demonstrate unambiguous intent to end the marriage.
The court system’s self-help guidance lists questions that track what judges examine:
- When did one of you decide the marriage was over, and how was that communicated, whether in conversation, email or text messages?
- Did one of you move out? If not, did you live separately in the same home, with separate rooms, routines or schedules?
- Did you stop socializing as a couple or making shared daily decisions?
- Did you stop combining income, open a separate bank account, or start paying your own bills?
- Did you tell friends, family or coworkers you were separated?
- Did you talk to a lawyer or mediator, or make plans to file?
- Were your actions after that date consistent, or did you reconcile for a time?
No one factor will necessarily rule the outcome. A spouse who moved out but kept taking family vacations, or who filed taxes jointly and described the marriage as intact, gives the other party evidence for a later date. The court looks at the whole picture.
Reconciliation matters too. If the parties separated, got back together, and separated again, the first break was not final, so the court looks for the break that lasted.
Physical Separation and Living Under the Same Roof
Physical separation is still the clearest evidence. When one spouse moves into a new apartment and the other stays in the family residence, the date is rarely in serious doubt.
But many couples cannot afford separate residences right away, and some stay under the same roof for the sake of minor children living at home. Since section 70, spouses living in the same dwelling can still be separated if the evidence shows a complete break.
Proof is harder in such cases. Evidence that helps includes separate bedrooms, separate finances, no marital relations, no shared meals or outings, telling relatives about the separation, and keeping that conduct consistent over time. Spouses living together while separated should write down the date and keep records, because the other spouse may later remember things differently.
Why the Date Matters in Divorce Cases: Property and Spousal Support
The date of separation determines several of the largest money issues in a divorce. That is what makes the date of separation important, and why it is a common factual issue in contested cases.
Start with earnings and property. California is a community property state, and under Family Code section 760, property acquired by a married person during the marriage while living in California is generally community property.
Under section 771, the earnings and accumulations of a spouse, and of the minor children living with or in the custody of that spouse, after the date of separation are the separate property of that spouse. Assets acquired with post-separation earnings are considered separate property.
A few months can shift salary, savings from that salary, and retirement contributions between community assets and one spouse’s separate estate. The financial interests at stake are often larger than people expect, which is why property division so often turns on this date. Our property division page explains how community property is divided.
Debts follow a similar line. Debts acquired after separation but before judgment are handled under Family Code section 2623. Debts for the common necessaries of life are allocated according to the parties’ needs and abilities to pay when the debt was incurred, and other debts are confirmed to the spouse who incurred them.
A related rule: a spouse who uses separate funds after separation to pay community debts, such as the mortgage, may be able to seek reimbursement, under In re Marriage of Epstein (1979) 24 Cal.3d 76, unless the payment was a gift or was really support.
The date of separation is not always the valuation date. Under Family Code section 2552, assets are generally valued as near as practicable to the time of trial, though the court may choose an earlier date for good cause.
Spousal support is the next issue. The length of the marriage is measured from the date of marriage to the date of separation. Under Family Code section 4336, a marriage of 10 years or more is presumed to be a marriage of long duration, and the court keeps jurisdiction over support indefinitely unless the parties agree otherwise in writing or the court ends it.
For shorter marriages, section 4320(l) treats about half the length of the marriage as a reasonable period for the supported spouse to become self-supporting.
When a long term marriage is near the 10-year line, a few months of difference in the separation date can decide which rule applies. Our spousal support page covers how support is set.
Social Security is measured differently. The Social Security Administration requires a divorced spouse to have been married for at least 10 years immediately before the date the divorce became final. Its clock runs to the final judgment, not the date of separation, so a marriage can fall short of 10 years for spousal support and still pass the Social Security test.
The date of separation does not decide child custody, which turns on the children’s best interests.
Listing the Date of Separation on Form FL-100
The petitioner states the date on the Petition, form FL-100. In its statistical facts section, the form asks for the date of marriage, the date of separation, and the time from the date of marriage to the date of separation in years and months. The respondent’s form, FL-120, asks for the same facts, and the respondent can list a different date.
The same section appears at the start of dissolution proceedings and legal separation cases alike. A date on the petition is the filer’s position, not a finding.
If the other party disagrees, the court resolves it. Choose the date carefully, with the evidence in mind. Dates can be amended, but a changed date invites questions about which version the evidence supports.
Proving a Date of Separation California Courts Will Accept
When the spouses disagree, the separation issue is handled like any other factual dispute. According to the court system’s self-help guidance on trial issues, each spouse must prove the date they propose is correct, and can also show why the other spouse’s date is wrong.
Useful evidence includes leases and utility accounts, bank records showing a new account in one name, emails and text messages, social media posts, tax returns, and testimony from friends or relatives.
Testimony that one spouse stopped attending family events, or that the parties stopped presenting themselves as a couple, is often relevant evidence.
If the other party holds records you need, discovery lets you request documents and ask written questions under court rules.
When the date drives major issues, California Rules of Court, rule 5.390 allows the court to try the date of separation separately, before other issues, so the rest of the case can proceed on a settled date.
These disputes are expensive when they go to trial. Many are resolved once one or both spouses review the documents and see what the evidence will support.
Frequently Asked Questions
What Does “Date of Separation” Mean?
It is the date of a complete and final break in the marital relationship. Under Family Code section 70, one spouse must have told the other they intended to end the marriage, and that spouse’s conduct must be consistent with that intent.
Is the Separation Date the Last Day of Work?
No. In family law, the separation date refers to the end of the marriage, not the end of employment. A job separation date has no bearing on it unless the marriage ended in fact at the same time.
What Is the 10-Year California Divorce Rule?
It refers to Family Code section 4336. A marriage of 10 years or more, measured from the date of marriage to the date of separation, is presumed to be of long duration, and the court keeps jurisdiction over spousal support indefinitely. It does not guarantee lifetime support.
What Is the Legal Separation Timeline in California?
A legal separation has no six-month waiting period and only one spouse must live in California, according to the California Courts self-help site. A divorce cannot become final until six months after service of the petition or the respondent’s appearance (Family Code section 2339). Learn more on our legal separation page.
If you and your spouse disagree about when your marriage ended, or you want to understand how the date affects your property and support, you can contact Pinkham & Associates to discuss your situation with an attorney.
This article is for general educational purposes only and is not legal advice. Every case depends on its own facts, and the outcome in your case may differ. Reading this article does not create an attorney-client relationship.
