Understanding the Date of Separation in California Divorce Law

Community Property in California

Under California Family Code Section 760, all property and income acquired during a marriage is presumed to be community property. This means that in the event of a divorce, the court must determine the moment when the community ends—this point is legally referred to as the “date of separation.”

Establishing this date is critical because any property or income acquired after this point is considered separate property.

The Two-Part Test for Determining the Date of Separation

The California family court uses a two-pronged test to determine the official date of separation:

1. Subjective Intent

The court first examines whether one of the spouses subjectively decided that the marriage was over and had no intent to reconcile.

For example:

If a spouse concludes that the marriage is irreparably broken and internally commits to ending it, they meet the subjective intent requirement.

2. Objective Evidence

Once subjective intent is shown, the court looks for objective actions that support that intent. These may include:

• Separation of finances
• No longer engaging in marital relations
• Ceasing to celebrate anniversaries or Valentine’s Day
• Informing others that the marriage has ended

There is no single dispositive factor—courts evaluate the overall picture. However, participating in marriage counseling has historically been seen as incompatible with a claim of separation, as it implies a desire to reconcile.

A Landmark Ruling: Marriage of Davis

In a pivotal shift, the California Supreme Court ruled in the case of Marriage of Davis that:

If spouses continue to live together, they are not legally separated—regardless of their intent or behavior.

This bright-line rule means that cohabitation delays the legal date of separation, even if the couple believes the relationship is over.

Why This Matters

This decision significantly changes how California handles community property, especially since:

• Many couples remain under the same roof for financial or parenting reasons even after their relationship ends
• Courts had previously accepted arguments that spouses could still be separated while living together

Now, such arguments are largely off the table.

Living Apart Doesn’t Automatically Equal Separation

It’s important to understand that the opposite is not necessarily true:

Just because a couple is living in separate homes does not automatically mean they are legally separated.

The court still requires evidence of:

• Subjective intent to end the marriage
• Objective actions consistent with that intent

So, spouses who live apart may still be part of the marital community if those criteria aren’t met.

Final Thoughts

The definition of “date of separation” in California has become more clear-cut thanks to Marriage of Davis, but also more restrictive. Understanding how subjective intent and objective behavior interplay—and how the court views cohabitation—is critical to protecting your financial interests in a divorce.

If you’re navigating a separation or have questions about community property, it’s essential to speak with a knowledgeable family law attorney who understands these nuances.