What Constitutes Your Date of Separation?


What Constitutes Your Date of Separation?

In Re Marriage of Davis is a California Supreme Court case that provided the legal community with a game changing ruling.

In California, all property acquired during marriage is community property. All property acquired prior to marriage and from the Date of Separation (DOS) onward is Separate Property.
Colleagues and I would often argue (debate) as to what constituted the Date of Separation. Essentially, by law, it was when the parties had no intention of reconciling. This, however was an objective view of a subjective opinion. Could you evaluate the Date of Separation from the time the parties stopped going to therapy? When they held themselves out as separated? What if they continued to live together but had every intention of filing for divorce and moving out at some point. Well, as you can see what day constituted the DOS was very much a grey area. The other day, the California Supreme Court stated that the threshold, definitive standard was the day a party moved out the home. In other words, they must be living separate and apart. In my opinion, the parties could have been separated long before that- maybe they did not have money for two households and it was purely for financial motives that a party continued to sleep on the couch. And in my opinion, the Supreme Court just wanted to provide uniformity and less for the judicial councils to decipher. In any event, this changes everything.

The holding in In Re Marriage of Davis is as follows:
We conclude that living in separate residences “is an indispensable threshold requirement” (Norviel, supra, 102 Cal.App.4th at p. 1162, 126 Cal.Rptr.2d 148) for a finding that spouses are “living separate and apart” for purposes of Family Code Section 771(a).

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