Date of Separation in California Divorces: What date do I put and why does it matter?

Parties who are filing or responding to a petition for dissolution of marriage will quickly come across a section for them to state their “date of separation” on the court’s pleading forms.  The question for almost all parties then immediately becomes, when did we separate? And why does the court need to know?  Why does this matter?

Why does date of separation matter?

The date of separation is important in California divorces for two main reasons:

  1. Property Division:  California law provides that generally property which is acquired by either spouse after the date of separation is the separate property of that spouse, which is 100% theirs.  This can include salaries, real property, personal property, accumulation of retirement benefits, as well as other property items.  While there are major complications which can arise in determining whether an item was received fully from a party’s separate property, in general the date of separation can have a significant impact on how the parties’ property is divided.
  2. Spousal Support: One of the biggest factors that the court considers in setting the duration and amount of spousal support is the length of the parties’ marriage.  Generally, the longer the parties are married the longer the spousal support will last (and potentially the higher it will be).  So, a choice between two different dates of separation can have a major impact on the support rights and obligations of the parties.

How does the court determine our date of separation?

Determining the exact dates that parties did in fact separate is a question that has perplexed the courts throughout the years and has led to inconsistent decisions.  For some parties there is no dispute and the separation is clear.  For example, if a husband and wife decide to live in separate residences on January 1st and the husband moves out that same day to his own apartment with the wife staying the marital home, January 1st is their separation date.  For other couples with multiple move-ins and move-outs, ongoing financial ties, and other ongoing joint activities the question of a date of separation can be even more complicated.  A third common category of couples may live under the same roof but separate their finances, schedules, and activities and live together as “roommates”.   What is the court looking for in deciding when the parties separated?  Is it about parties emotional connection? Physical intimacy?  Their living situation?

In 2015 the California Supreme Court weighed in on the issue of the parties’ date of separation for the first time.  In the case In Re Marriage of Davis the Supreme Court established that for parties to be separated they must be living in separate residences.  In essence, parties are not separated until they no longer live under the same roof.  However, the court also recognized the reality that parties may live in the same household and still be separated in certain exceptional circumstances, but did not elaborate on what those circumstances could be.   This caveat, buried in a footnote in the court’s opinion, leaves the door open for this rule to change in the future.  As it stands now though, parties must first and foremost be living in separate residences to establish their separation.

Other older cases make clear that parties can still be married (unseparated) even though they do not live in the same residence.  In essence it is not enough for the parties to live in different residences; the parties’ conduct and the circumstances of their marriage may refute a finding that they are separated.  The best example of this comes from the case Marriage of Baragry, where the husband lived with his girlfriend/employee in his own apartment, but often went home to his wife and children to enjoy her home cooked meals, have her do his laundry, and otherwise maintained ongoing ties with his wife while living with his girlfriend.  The court refused to allow the husband to claim that they separated when he first moved out in light of the benefits husband continued to receive due to his ongoing relationship with his wife, even though he didn’t actually “live” there.  Essentially, the court will not allow parties to have it both ways.

The cases on date of separation are complicated and at times contradictory.  As discussed above, this issue can be critical and can have a substantial impact on the rights of the parties.  If you have questions about the date of separation in your case and the best approach to take, it is important that you contact one of our attorneys to guide you through this process.

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