In California, all property acquired during marriage, including each spouse’s income, is presumed to be community property (each spouse owns 50%). After spouses separate (that is, decide the marriage is over), all property or income acquired after that date is a spouse’s separate property (they own the property 100%). Thus, a very important question in every divorce is: What, or when, is our specific date of separation?
Legally, your date of separation is the date on which there is “a complete and final break in the marital relationship….as evidenced by the spouse’s expression of his or her intent to end the marriage and conduct that is consistent with that intent.” (see http://www.leginfo.ca.gov/).
Practically speaking however, spouses can and often do have differences of opinion on when the “final break” of the marriage occurred. Thus, if spouses cannot agree on their date of separation, a court must sift through all of the unique circumstances in each case before making a determination on the date of separation. In an effort to create a bright-line rule on date of separation, in 2015 the California Supreme Court held, in Marriage of Davis that spouses needed to be living in separate residences to be legally “separated.” However, the legislature passed a new bill (SB 1251) effectively overturning Davis and returning to the old law, which will be effective on January 1, 2017.
If you are uncertain about your date of separation, East Bay Family Law and Mediation will walk you through an analysis of the facts and circumstances of your specific case and make practical recommendations designed to help you navigate what is not always a straightforward issue.