As I have discussed in previous blogs, California is a community property state. Meaning that all income, real estate, retirement plans, stocks, etc. are considered part of the community and each spouse has an equal interest in all property, assets, and debts. (As discussed there are some types of property that are excluded, but that is not the topic of this blog.) So, when does the community estate cease to exist? The answer is the date the spouses separate. Upon separation the assets are divided, including income, retirement plans, and debt.
When are the parties considered separated? Well, before January 1, 2017, the date of separation was when the parties stopped living together. In Re Marriage of Davis (2015) 61 Cal.4th 846. This made it very easy for the parties to know when they separated, thus providing a clear line of demarcation between marriage and separation.
However, Davis is no longer controlling. Starting January 1, 2017, Family Code Section 70 was enacted and Davis is considered old law. Family Code Section 70 states:
(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.
Simply living in separate residences no longer defines you and your spouse as being separated. If you have a question regarding your date of separation, or need assistance in your divorce proceeding please call our office to set up a consultation.