Why does date of separation matter? Simply put, it matters because all of one spouse’s earnings after that date are treated as separate property. In California, there is now a statutory definition of the “date of separation” as added by Family Code Section 70.

            Section 70 tells us that “the date of separation” is “the date that a complete and final break in the martial relationship has occurred.” The complete and final break has two requirements: 1) one spouse has expressed to the other, an intent to end the marriage; and 2) the conduct of the spouse is consistent with ending the marriage. Lastly, the court will look at all relevant evidence.

            The first requirement is explained by a recent case, In re Marriage of Lee v. Lin, which tells us that the spouse who wants to end the marriage, does not have to verbally express their intent. That expression may be determined by “all relevant evidence.”

            The second requirement is explained by In re Marriage of Manfer, which says that the best evidence of a final break is the spouses’ words and actions. More specifically, the court will compare the words and actions of the spouses before and after the date in question in order to determine whether or not there has been such a break.

            In short, the more evidence one has to give to the court to prove their date is the correct one, the better. The court will look at the words and actions of each spouse on social media, the commingling of funds, how the spouses file taxes, whether they travel together, and how they celebrated holidays together.

            For example, In re Marriage of Bargary, the husband believed his date of separation to be when he moved to an apartment. However, even after leaving the house, the husband ate dinner with wife at least three to five times a week, frequently took his wife to social occasions, regularly brought his laundry home to be washed by wife, and maintained his mailing address at the house. Husband and wife continued to file joint income tax returns, husband paid all the household bills, and supported his family. Wife testified that husband did not tell her he was never coming back and the court’s conclusion that the correct date of separation was wife’s contested date.

            In re Marriage of Manfer, husband and wife did not have sexual relations with one another after the husband moved out, did not commingle money or support one another and neither intended to resume the marriage. Husband and wife separated their lives in all respects with the few exceptions based on their mutual agreement to keep their separation secret. The conclusion here is that these facts supported wife’s contested date of separation.

            The comparison of facts in Lee v. Lin, show us that before husband’s date of separation, husband slept at the family home in a bed he shared with wife, ate dinner with her, vacationed, and spent holidays together. After the separation, husband did not celebrate any holidays, go on any vacations, or commingle funds. Given this comparison, the court found in favor of the husband’s date.

            In determining the date of separation, facts and their total amount are the keys to persuading the court to uphold your date of separation. Make sure to marshal all your evidence since the court will look all of the relevant parts.