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Family Law Blog

Divorce & Family Law Blog by Attorney Jamie Elmer of Berkeley, California



"Separation" Marks the end of the Creation of Community Property & Community Debts

The date of separation is important because it marks the end of the community for purposes of establishing community property rights and debts. For instance, all acquisitions and accumulations, including earnings, earned prior to the date of separation during the marriage are community property to be split equally between the parties in a divorce. Likewise, debts incurred during the marriage prior to separation are community debts to divided equally between the parties.

Once the parties have separated, their earnings and acquisitions become their separate property, and likewise any debt incurred after the date of separation will be the debt only of the party incurring the debt.

What does it take to be "Separated"?

Separation for purposes of California Family Law occurs when the parties have come to a parting of the ways with no present intent to resume their marriage, and their conduct evidences a complete and final break in the marital relationship. There must be both a subjective intent to end the marriage as well as objective conduct demonstrating such intent.

As of January 1, 2017, California Family Code Section 70 provides:

"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.
  3. In determining the date of separation, the court shall take into consideration all relevant evidence.

Only one party need have such intent. A joint agreement to separate is not required.

[NEW] No requirement to be living "separate and apart"

The above quoted language in Section 70 was in a bill signed by the governor in July of 2016 and abrogated two court decisions which held that the parties must live in separate residences before they can be treated as separate for purposes of establishing separate property rights and obligations.

The new version is effective January 1, 2017, however legislative notes indicate it should be applied retroactively to any case pending on January 1, 2017, although the courts have yet to decide this issue. For cases being resolved before the end of 2016 separation requires at a minimum, that the parties be living in separate residences. [See In re Marriage of Davis (2015) 61 Cal.4th 13 846 and In re Marriage of Norviel (2002) 102 Cal.App.4th 115.]

The new language of the law recognizes that parties may have very practical financial reasons to stay in the same household during the pendency of the divorce case and still be separated for purposes of ending the accrual of community assets and debts.

Whether the parties are separated is a question of fact to be determined under all the circumstances.

The following are some relevant factors:

  • whether the parties are in fact living together or not,
  • whether they still share a common bed or bedroom,
  • engage in sexual relations,
  • share joint finances, or not,
  • joint vacations, meals, outings,
  • hold themselves out as married persons [can still be separated but agree to keep it secret],
  • any written or oral statements pointing one way or the other,
  • have filed a petition to dissolve the marriage,
  • living separate but still in counseling in attempt to save the marriage.
  • Successive Periods of Separation Probably Not recognized

Rarely will the law recognize successive separation dates as the intermittent reconciliations demonstrate that the breakdown was not "final." On the other hand, there is a strong argument to be made that there should be allowance for successive periods of separation as long as at the time of those periods the intent was to terminate the marriage, and the possibility of reconciliation arises afterwards.

Because separation in this context requires a "final" breakdown of the marriage, a trial separation does not amount to being separated, and even if one of the parties files a petition for divorce, as long as there is not an intent to carry through with the proceeding or the parties are still open to the possibility of reconciliation, the parties will not be separated for purposes of determining the character of debts and income acquired during that period.


Each of the above factors and situations may or may not support a finding that the parties are separated. Each case will be decided on its own unique factual situation. Often, it's quite obvious, but sometimes it is not. In this day and age there are good reasons why married persons may live apart (and not be "separated"), and why persons who are getting divorced may still reside under the same roof.

Thus, parties who want to be separated must make their intentions known, and act accordingly.

If  you have further questions regarding date of separation and other divorce issues, please contact Martin "Jamie" Elmer, family law attorney in Berkeley, California, at (510) 644-2411 or by email, for a free initial consultation.