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More About Date of Separation in a Divorce

Date of Separation:


For years, the law for determining the date of separation for a married couple was as it is today. Then, it changed for about a year, but the California Legislature unwound the changes and returned the law to its original state.

Therefore, as was expected, the law on the determination of date of separation changed January 1, 2017. We are back to the old version, where one party simply has to express to the other that the marriage is over, then do some acts in furtherance of that desire. Please see the actual CA Family Code language below.

Why I am writing on this subject yet again? My colleague just got back from a full hearing on this issue alone and the judge ruled in an unexpected manner and for an unexpected reason.

The judge made the statement that he believed that if this man TRULY wanted to separate and “express” his intent “end the marriage,” he would have actually filed for divorce. Obviously, the act of filing for divorce would be a clear expression of intent to end a marriage. However, this was the first time I had ever heard a judge suggest that he expected the party to actually file for divorce to reach the threshold of that “expression” of intent.

In my experience in almost two decades of Divorce and Family Law practice, a clear expression of intent to end the marriage such as, I’m leaving and I want a divorce,” or “*I’m done, this marriage is over” followed by moving out of the home, or moving out of the bedroom and opening your own bank account, credit cards and similar changes in furtherance of intent to divide your lives, would generally be enough. But, this particular judge took the code to the extreme. Just a note for those interested to be aware.

As mentioned above, here is the present CA Code on Date of Separation:

Family Code Sec. 70.
(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.
(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.


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