What Is the Date of Separation?

The determination of a divorcing couple’s date of separation often has important consequences on characterization and division of assets, spousal support, reimbursements and credits.  

The trial court generally has wide latitude in deciding the date of separation based on the relevant facts.  In Marriage of Davis (2013) 220 Cal.App.4th 1109, the Court of Appeal affirmed the trial court’s ruling that the parties’ date of separation occurred when the wife began using a “financial ledger” to segregate the parties’ expenses and stated her intention to end the marriage, rather than when she moved out of the marital residence five years later.

In the Davis case, the parties married in 1993.  In 2006, the wife presented the husband with a spreadsheet for the parties to track their household expenses.  She believed that the marriage was over then, and she wanted each party to contribute equally to common household expenses and the children’s expenses.

The wife did not file her petition for divorce until 2008, and she did not move out of the marital residence until 2011.  The wife took the position that the date of separation was in 2006, when she divided their finances, and the husband claimed that it did not occur until 2011, when the wife moved out of their home.

The trial court ruled that, based on all of the relevant facts, the date of separation occurred in 2006, when the wife had the subjective intent to end the marriage and evidenced that intent objectively by segregating the parties’ finances.  The Court of Appeal affirmed, and explained that although living separately is an indispensable requirement for the date of separation, the parties can be “living apart physically while still occupying the same dwelling.”

As the Court of Appeal reasoned, the date of separation occurred when “the parties’ dysfunctional relationship developed to where they had essentially become roommates and coparents, maintaining separate finances and cooperating only to the extent necessary to maintain the household and cover their children’s expenses.”