How does one establish date of separation in California? What if both stay under the same roof while separated emotionally and physically? Does sleep over at friends or hotel count (even though both spouses still may have clothes & food items in same house?
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).
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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.
"(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."
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.
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