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Determining the Date of Separation


How does the Court currently determine the date of separation in a California family law action?

A recent case came down that drastically changed the criteria for determining what the appropriate date of separation is. Previously, had parties objectively acted in such a way that showed others that they were living separate and apart (opening separate bank accounts, filing separate tax returns etc.) that would be sufficient to set the date of separation between the parties. Now, under IRMO Davis (2015) 61 C4th 846, that standard has changed. In Davis, the parties married June 12, 1993. In 2004, they moved into separate bedrooms in the same house. On June 1, 2006 wife informed husband that the marriage was over. In July of 2006, wife starts a new job. Husband leaves job in September 2006. Wife files for divorce on December 30, 2008. Wife moves out on July 2011. Husband filed an amended Response to change the date of separation to July 2011 (when wife moved out). Court ruled that despite separate bedrooms, separate accounts and that wife filed for divorce, the Court found the later date to be the correct date of separation and all property acquired after wife initially filed for divorce and the date that she moved out was community property. The Court further found that living in separate residences is an indispensable threshold requirement to living "separate and apart" for purposes of determining the date of separation. The statute requires the spouses to be living in separate residences in order for their earnings and accumulations to be their separate property.

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