The Date of Separation is something that has to be decided before there can be any Judgment that finally dissolves a Marriage in the State of California.
It’s so important, that if you were to win the Lottery on the day before you 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 just 5 minutes after you successfully separated, the proceeds would be your Separate Property.
As important as that distinction is in this State, there’s no Statute that actually determines what will cause a Date of Separation to come into being. There are a number of laws that dictate what will happen once a Date of Separation has occurred; but, there is no written law, created by any elected body, that creates that distinction.
For instance, Family Code section 771 (a) states that “[t]he earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, are the Separate Property of the Spouse”; but, there is no such “Code section” that actually dictates how to get to that point.
It’s also pretty well established, that there is at least an expectation, that the fixing of a Date of Separation will require that the parties shall have begun to be “living separately and apart” —but then, that’s where things start to get a bit “squishy.”
Can you be separated and living together at the same time?
We at least know, that for a date of separation to have come into being in the legal sense, there has to have been in the mind and resolve of at least one of the spouses, a belief in the existence of a complete and final breakdown in the marital relationship, which has been manifested by the deliberate expression and other affirmative conduct on the part of the separating spouse; and, that will usually entail that the spouses have begun to reside in separate residences. However, the establishment of separate residences can, at the least, bring on some enormous difficulties; and at the most, cause great hardship for one, or both parties; as well as for their children and their financial situation. It can even give rise to a dangerous situation.
Nevertheless, the most authoritative courts in this State have observed that there might be circumstances that could support a finding that spouses were in fact “living separate and apart,”and to a degree that could permit a finding that they should be considered to be “separated” for the purpose of establishing the necessary “Date of Separation”, in the legal sense; and, notwithstanding the fact that they may have been living under the same roof for all of that time.
Just recently, something has happened that often leads to a radical change in our law. Our State Supreme Court will sometimes make a decision in a case before them, that explicitly changes the law.
However, sometimes a decision by our highest court will just include an observation, or otherwise merely point out a problem or confusion in a law; and in a manner that will prompt the legislature to make a big change —- and, that is what has apparently happened in California.
Changes May Be Coming By Way Of Legislation
Specifically, there has been a Case that has stimulated the writing of a new law for this State. It is entitled In re Marriage of Davis; and because of its particular set of facts, the California Legislature has taken it on itself to draft a new law designed to clear-up any ambiguities in the law, and provide definite criteria for determining a Date of Separation.
The proposed statute is now in the form of state Senate Bill 1255; which, if it passes and is adopted, will amend a number of existing laws; while at the same time, create what is intended to be Family Code section 70; which has been designed to clear-up what has been characterized as a confusion in the law, created by the Davis Case.