Date of separation in state of California, how does a spouse establish that?
4 attorney answers
I agree with the above responses, and would add - it doesn't matter if the parties are still under the same roof. There are multiple reasons why spouses may choose to remain in the same home during pendency of a divorce. If they are, as you state it, "separated emotionally and physically" the date of separation is the date when this "emotional and physical" separation began.
"(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."
Date of separation would be the date that at least one party communicates to the other that they are done with the marriage. Hopefully the parties can come together on the D.O.S. to save litigation costs.
In California, the date of separation is the date when one (or both) of the spouses has decided that their relationship is beyond repair, and that no amount of family counseling could possibly help. This standard is referred to as "irreconcilable differences," and is a subjective test (that is, it is entirely up to their perspective).
Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of California. Responses are based solely on California law unless stated otherwise.
Sign up to receive a 10-part series of useful information and legal advice about the divorce process.