The “date of separation” is a legal term of art indicating the date in a dissolution or legal separation matter when the parties separated and the “community” created by the marriage would end. This date is important, as the values of many assets and debts on this date are considered in the final division.

Recent case law in the Davis case determined that a party would not only need to decide that the marriage was over, but would need to physically separate from the other party, and only on that day would the community end. (In re Marriage of Davis (2015) 61 Cal.4th 846.)  This set a difficult standard for many couples who decided to separate, but still cohabitated, as most do for at least a few weeks out of choice or necessity.

The family law bar reacted, and campaigned for new legislation which would change the standard to more conform with the expectations and actions of typical California separating spouses. Senate Bill 1255 was introduced and approved and will take effect on January 1, 2017. The text of the new code section is as follows:

(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.
The law will longer require a physical separation, but it requires the court to consider relevant evidence to determine each spouse’s desire to end the marriage and any conduct consistent with this desire.