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New California Law Defines Date of Separation

In many states, including California, your date of separation has legal implications. If you and your spouse are still living in the same house for economic or family reasons, proving that you are really separated can be critical.

Effective January 1, 2017, a new California law amended the Family Code allowing for a couple to be considered “living separate and apart” while still living together for purposes of establishing a date of separation. This bill further applies retroactively to all divorce cases currently pending as of January 1, 2017.

The newly added California Family Code Section 70 reads:

70(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.

Essentially the California Family Code used to say that spouses had to be “living separate and apart” in order to define a date of separation. Now, the defining date of separation does not have to mean that one of the spouses has to move out of the shared house.

There are many reasons why couples who have opted to divorce choose to live together.

The most common reason being it can be incredibly expensive to maintain two households and the divorcing couple simply cannot afford it. Thus, they regard themselves separated (by deeds) while continuing to live in the same house.

Here is a checklist of what you can do if you and your spouse are still living together but separate.

  • Establish and maintain intent to separate permanently or indefinitely.

  • Use separate bedrooms.

  • Do not engage in romantic or sexual intimacy.

  • Stop wearing wedding rings.

  • Don’t shop for your spouse’s food, prepare his meals, or shop for his clothing and other necessities.

  • Don’t let your spouse shop for you, and don’t use his food or other purchases.

  • Do not eat meals together, except for special occasions such as holidays or children’s birthdays.

  • Make each spouse responsible for caring for their own space within the home, such as bedroom.

  • Make each spouse responsible for doing their own laundry.

  • Use a separate and secure computer.

  • Use a separate and secure telephone for personal and business calls.

  • Establish separate checking accounts.

  • Cease socializing together, e.g., do not attend parties, movies, theater, etc. together.

  • Do not attend church together.

  • Where there are minor children, interact as parents only where strictly necessary from the children’s perspective and their well-being, e.g., meeting with school officials. If you both attend your child’s game, don’t sit together.

  • Don’t give gifts to your spouse for birthdays, Christmas, anniversary, Valentine’s Day, etc.

  • Let close associates and relatives know that you are not living as man and wife, but are separated within the residence.

  • Have a third party come to the home from time to time to personally observe the two spouses’ separate and distinct living quarters (bedrooms, bathrooms, etc.).

  • Utilize separate entrances to residence if feasible.

  • Be prepared to explain why you are living separately under the same roof, e.g., financial considerations; unavailability of separate residence; easing children’s transition to parental separation, etc.

If you and your spouse are considering separating, or are separated and living together, feel free to contact me with any questions you may have.

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