How Can Your “Date of Separation” in Your California Divorce Impact The Outcome of Your Case?

Understanding the Date of Separation in California Divorce

If you’re considering divorce in California, one of the most important concepts to understand is the date of separation. This date can have a major impact on your legal rights—particularly when it comes to dividing property and debts.

What exactly does the “date of separation” mean under California law, and how do courts decide when it occurred? A common misconception is that it is the date someone files for divorce, or the date the court enters the judgment of divorce. Importantly, this is a date you list on the very first document you file when you petition for your divorce, and you do not want to list the wrong date. Below, we break down the legal definition, key case law, and why this date can make a significant difference in your divorce outcome.

What Is the “Date of Separation” Under California Law?

California Family Code Section 70 defines the date of separation as:

The date that signifies the complete and “final break in the marital relationship.” This is identified when one spouse expresses their intent to end the marriage, and their conduct carries out the intent to end the marriage.

Thinking about or talking about ending the marriage is not enough. Statements like “I’m divorcing you!” or “I’m done with this marriage,” during a heated argument typically do not meet the standard either—the spouse(s) must act in such a way that shows a complete break in the marital relationship.

Why the Date of Separation Matters?

The date of separation marks the end of the community property period. Under California’s community property rules:

• All income, assets, and debts acquired between the date of marriage and the date of separation are presumed to be community property (in other words, the property is subject to equal division).

• Anything earned or acquired after the date of separation is typically considered separate property.

Your date of separation therefore can directly influence how the court divides retirement accounts, income, business interests, real estate, and even debts.

How Do California Courts Decide the Date of Separation?

Parties typically agree on the date of separation, but when they do not, the Court must decide. The courts look at the totality of the circumstances in each case. This is a factual issue and must be proven by a preponderance of the evidence, meaning it’s more likely than not that separation happened on the date you claim.

Here are the key factors courts consider:

• Living arrangements (Did one spouse move out?)

• Sexual relationship (Are you still physically intimate?)

• Financial entanglement (Do you share bank accounts or file taxes jointly?)

• Public behavior (Do you act like a couple in front of others?)

• Private communications (Texts, emails, or conversations about ending the relationship)

• Whether you stopped supporting each other emotionally and financially

Relevant California Case Law on Date of Separation

Courts have provided guidance on how to apply these factors in real-life cases. Below are some notable examples:

In re Marriage of Hardin (1995)

This case established that no single factor is determinative. The court must evaluate subjective intent (wanting the marriage to end) supported by objective evidence (actions that confirm that intent).

In re Marriage of Manfer (2006)

Even though the couple agreed to hide their separation for the sake of their kids, the court found they were legally separated because they stopped living as spouses in every meaningful way (no sexual relationship, separate finances, separate lives).

In re Marriage of Baragry (1977)

Here, a husband moved out and lived with another woman, but the court found the couple had not separated because he continued to send cards expressing love for his wife, relied on his wife for support, and filed joint tax returns. His actions did not support a clear and final break in the marriage.

Common Misconceptions About Separation

“We still live together, so we’re not separated.”
→ Not necessarily. You can still be considered legally separated while living under the same roof if your actions show the marriage is over.

“We stopped being intimate, so we must be separated.”
→ Not necessarily. The court looks at the full picture, not just one element.

“We don’t live together anymore, so we are separated.”
→ Not necessarily. If you move out for a cooling off period, but decide mutually to work on the marriage or attend marriage counseling during that time, you may not be separated. 

What You Should Do If Your Separation Date Is Disputed

If you and your spouse disagree about the date of separation, it's important to:

• Document your intent to separate.
  Keep written records (texts, emails, journals) that show when and how you ended the relationship.

• Take concrete steps to separate your life.
  This includes discussing financial disentanglement*, living arrangements, and making your separation known.

*Note – Speak with an attorney before taking any actions to financially disentangle from your spouse. Action before discussion could result in legal and financial penalties in court!

• Talk to a family law attorney.
  An attorney can help you gather the right evidence and make a compelling case for the correct date of separation.

Final Thoughts

The date of separation in a California divorce is more than just a formality, it can significantly affect your financial future. If you are unsure what your date of separation should be—or how to prove it—consulting with an experienced family law attorney is a crucial step.

At Livingstone Law, we help clients clarify their legal position and protect their interests from day one. Contact your experienced Livingstone Law attorneys today at livingstonelawsd.com or (619) 630-2165 to discuss your case.