Hey, We Finally Got a Date of Separation!

So long, farewell, auf wiedersehen, good night…

Back in early April of 2016, we had an Article in this space, where we asked, “How Many Degrees to a Date of Separation?”  It observed the fact that (and up to and including that time), there was really no law in the State of California that actually defined what would constitute a “Date of Separation” in this State.

By that time we already had, and for some time before that, Family Code section 771 (a), which states that “[t]he earnings and accumulations of a spouse … while living separately and apart from the other spouse, are the separate property of the spouse”; but, there has been (up to now) no  “Code section”  that actually defines and dictates how to get to that point.

Nevertheless, the finding of a Date of Separation is something that has to be accomplished before there can be any Judgment that finally dissolves a Marriage in the State of California.  In fact, the date of Separation, and not the date of a Final Judgment, will be found to be the date when the Community (and its accumulation of “community property”) actually ends.

Likewise, the determination of such a date is necessary for certain other legal actions and procedures, such as:   a Judgment for Legal Separation of parties to a marital relationship; a legal determination of one’s responsibility for certain debts and other obligations; and, the incidents of ownership and other quality of title pertaining to items of real and personal property.

Procrastination could cost you…

In fact, (and very generally speaking) the actual Date of Separation is so important, that if you were to win the Lottery on the day before you became separated from your spouse, the winnings would still be the jointly owned Community Property of the both of you; but, if you were to win the Lottery from money earned just 5 minutes after you successfully separated, the proceeds would be your Separate Property.

Now, the conventional wisdom in this State has always been, that the achievement of an actual “Date of Separation” should at least require that the parties shall have begun to be “living separately and apart” —- that is, living in separate residences —- but then, that’s where things began to be a bit vague and sometimes uncomfortably ambiguous.

Nevertheless, it will be found that the reasons that things began to become so indefinite were not without some empathy and other meritorious concerns.   The abilities of estranged persons to acquire separate residences  (which many times required locations that would be conducive to the secure housing of children of the parties)  were often difficult, to say the least —- and especially when some of the reasons for the breakups would, in the first place,  include financial difficulties and other similar concerns.

Going back to where we found ourselves last April, included the fact that a Case had just come before the California Supreme Court, where it was observed by our Chief Justice that a correct view of the law, and a condition precedent to any consideration of a Judgment of Dissolution of a Marriage, should require that the parties to that relationship must have begun to be living in separate residences for their Separation to be recognized.   That Case,  entitled  In re: the Marriage of Davis, was also credited with arousing the legislature to do what it would ultimately find itself doing, which would be legislation that would put an end to all of the uncertainty in the Law   —– at least on this particular subject.

So, now here we are in April of 2017, where it will be found that the California State Senate, in the form of Senate Bill 1255, and perhaps in the exercise of its independence and plenary power (in comparison with the Courts and all the other branches of government), has passed into Law what shall include, amongst other things, California Family Law section 70;  and perhaps somewhat of a surprise for some, this writer suspects; and especially considering the herein partial description of the history of this particular point of Law.

In particular, Family Code section 70 provides that a divorcing couple may separate their finances, but still be able to live together under the same roof, and nevertheless be considered legally Separated under the Law; and while they otherwise  finish going through their divorce.   This change in the law required the amendments of at least five other existing laws; and a clear statement of the elements necessary to define a Date of Separation:   “ … the date that a complete and final break in the marital relationship has occurred, as evidenced by a spouse’s  intent to end the marriage, as well as conduct that is consistent with that intent.”


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