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No matter how much you may be independent of a spouse – or how much the thought of still being married to a spouse saddens, annoys, or generally feels in the past to you – you are still legally married until the date of a dissolution order signed by a California family law judge ending your marriage. But, of course, the decision to end the marriage comes often long before that date. Even if you file for divorce the day you decide to split up, it will take at least six months for the divorce to become final. But, in some cases, couples separate months and even years before that date, or even before they take any legal action whatsoever. While no lawyers or judges may be involved at the moment you separate, the date of separation – sometimes called the DoS – is actually quite legally significant for your divorce, and understanding what that date is and memorializing it can be important to protecting your financial rights in a divorce.

What is the Date of Separation in California?

The date of separation in California is essentially the date that at least one member of the marriage decided to end the marriage and made that intent clear to the other spouse.
Specifically, California law defines the date of separation as the date there was a “complete and final break in the marital relationship,” evidenced by both of the following:

  • One spouse expressing his or her intent to end the marriage to the other spouse; and
  • Conduct consistent with that intent

Thus, merely talking about a divorce or threatening divorce when there is not a clear intent and accompany conduct to end the marriage is not sufficient for a date of separation. There is no requirement that one spouse move out of the marital home for the date of separation to begin (after all, that is a big, expensive step to take for a person trying to figure out their life, and many couples are able to continue cohabitating civilly while figuring out next steps).
That said, the courts will look at conduct when there is a dispute over the date of separation to determine when the date actually occurred. For example, an individual in a couple that continues to hold themselves out as happily married to friends, engages in sexual intercourse, and shares finances will likely have a more difficult time proving an earlier date of separation than one who moves out and establishes separate finances.

Why the Date of Separation in California is Important

So why is the date of separation so important, such that people might argue about in court? The reason is that the date of separation is the date that the family law court will look at your separate situations to determine issues such as property distribution and spousal support.
In California, all property earned during the marriage (or acquired with earnings during the marriage) is considered community property, and thus is divisible 50/50 between the spouses in a divorce. The “during the marriage” period, however, begins on the date of the wedding and ends on the date of separation. Thus, if one spouse wins the lottery the day after the date of separation, or comes into some other large windfall, that may not be community property subject to division (although investigation might be needed to determine whether that property was actually earned before the date of separation, as opposed to being received).
Furthermore, spousal support is often based on the length of the marriage. If a couple was only together six months, then one spouse moved out with intent to separate, but only filed for divorce five years later, the court will look at the six month period in determining spousal support, not the full five years.
Other issues may be relevant as well, and those considering divorce – whether they have separated or not – are urged to speak with a California family law attorney regarding their options.  
For any questions on family law in California, contact the Law Office of Kelley C. Finan today to schedule a consultation to discuss your circumstances.