What is the date of separation and why is it important?

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You may hear family law attorneys talk about the “date of separation.” This blog post goes over the basics of why the “date of separation” is important for your dissolution.  Under California law, the date of separation is used to determine when the “community” ends for the purposes of property division. This means that prior to the date of separation all earnings, property, and gifts acquired are part of the community, and after the date of separation any earnings, property, and gifts acquired are separate property.  

This date of separation is also used to determine spousal support. This is because the total length of the marriage is a factor for determining the amount and duration of spousal support.  This year, the California Supreme Court held that the date of separation is when you are physically living separate and apart. 

Additionally. while the date of separation noted on your Petition for dissolution may be considered by the Court, this is not a binding date and the Court can consider other factors. For example, here are some of the factors that could be taken into consideration when determining the date of separation:

  1. When did the parties stop living in the same residence?

  2. What type of communication are the spouses having? How frequently is the communication?

  3. Are the two spouses eating meals together, running errands, or continuing to see each other socially?

  4. Does the spouse who has left the family residence still use the residence as an address for the DMV and voter registration?

  5. Have the parties bought property together recently?

  6. Do the parties file joint income tax returns?

  7. Do the parties attend social functions as if they are still a couple?

  8. Has either party told family and friends that they are no longer a couple?


Essentially, you should ask yourself, when did we stop acting like a married couple to our community, family, and friends. It is important to work with a lawyer to determine this date if you think it will be a point of contention during your dissolution.

What is a no-fault divorce?

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California was the first state to adopt no-fault divorces and now 43 states currently provide for no-fault divorce. But what does no-fault mean for you, the individual? Simply put, no-fault divorce means that a family law court cannot look to fault when deciding things like dissolving marriage, property, or ordering support.  

In 1969, the Family Law Act eliminated the fault requirements for obtaining a divorce. In 1969, California enacted Fam.Code § 2310 (previously a civil code section) that allows for dissolution of marriage based on irreconcilable differences which have caused the irremediable breakdown of the marriage. See In re Marriage of Walton (1972) 28 Cal. App.3d 108, 119, 104 Cal.Rptr. 472: "After thorough study, the Legislature, for reasons of social policy deemed compelling, has seen fit to change the grounds for termination of marriage from a fault basis to a marriage breakdown basis."

This means that to file for divorce in California only one spouse or domestic partner must claim that the couple cannot get along or stipulate to what is known as “irreconcilable differences.”  This also means that the disposition of the case will not be impacted if one spouse has cheated, lied, or behaved poorly. 

Back in 1969, the law changed because establishing blame for the failure of a marriage became the focus of family court and both the Court and legislature agreed that usually both parties were responsible for the breakdown of a marriage.  Currently, fault is rarely a relevant consideration in the legal process by which a marriage is dissolved.  

The key takeaway, is that even if your spouse has behaved poorly during the marriage, California will rarely take that into consideration when dividing the property and ordering support. Instead, public policy focuses on helping each party reach an agreement concerning the community property they are entitled. You can contact me at Amanda@gordonfamilylaw.com for more information.