Written by attorney James Louis Miller

Date of Separation: California

Everyone has heard the term date of separation (DOS) and knows that any property acquired or income earned after the DOS is the separate property of the party. What many don’t know is how the court determines the DOS if there is a dispute. How does one prove the complete and final breakdown of the marriage?

The court will look at any number of factors to determine the final DOS. Here are some that are listed in the California CEB, taken from Dissolution Strategies: From Intake to Judgment (CAL CEB 2009) §2.17-1

  • When did spouse move out of family residence?
  • Did he or she move back in? When and for how long?
  • What kind of contact is made with the spouse, and how frequent is that contact?
  • Does the "away" spouse have meals at the family residence? How frequently?
  • Does the "away" spouse use the family home as a mailing address or for voter or driver's license registration?
  • Have the parties gone on vacations or to entertainments together, with or without the children?
  • Has the "away" spouse sent letters, cards, or flowers or celebrated special occasions with the spouse remaining in the residence?
  • Nature and frequency of reconciliation attempts, counseling, statements such as "I love you," resumption of sexual relations.
  • Did the parties continue to file joint income tax returns, acquire property together, or maintain joint checking accounts or credit cards?
  • Has either of the parties denied to others that there was a separation?
  • Have the parties attended social functions together as husband and wife?
  • Does one party continue to provide spouse-like services or support (laundry, cooking, cash)?
  • Did the parties decide the marriage was over even though they delayed notifying family and friends, while keeping their finances and other affairs separate?

Additional resources provided by the author

Marriage of Manfer (2006) 144 CA4th 925, 930, 50 CR3d 785; Marriage of Norviel (2002) 102 CA4th 1152, 1162, 126 CR2d 148; Marriage of Hardin (1995) 38 CA4th 448, 45 CR2d 308; Marriage of Von der Nuell (1994) 23 CA4th 730, 734, 28 CR2d 447; Marriage of Baragry (1977) 73 CA3d 444, 140 CR 779; Marriage of Marsden (1982) 130 CA3d 426, 181 CR 910.

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