Effective 1.1.17, the Family Code defines the Date of Separation. This is the first time a definition for the Date of Separation has appeared in the California Family Code. The law was enacted to abrogate the decisions in In re Marriage of Davis (2015) 61 Cal.4th 846 and In re Marriage of Norviel (2002) 102 Cal.App.4th 1152.Effective 1.1.17, the Family Code defines the Date of Separation. This is the first time a definition for the Date of Separation has appeared in the California Family Code. The law was enacted to abrogate the decisions in In re Marriage of Davis (2015) 61 Cal.4th 846 and In re Marriage of Norviel (2002) 102 Cal.App.4th 1152.
Per section 70 the 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. Section 70 establishes a totality of the circumstances test, which requires the court to take into consideration all relevant evidence when determining the date of separation.
Both Davis and Norviel said, essentially, that the parties, at least under the facts of those cases, could not be separated if they were living under the same roof. There are many reasons that married persons who wish to divorce may continue to reside together before filing for divorce or even during the pendency of the proceedings. Now the law says that living under the same roof is just one of the factors the court may consider in determining the date on the final break in the marital relationship occurred. Case law has shown that marital intimacy (sex) or marriage counseling moves the date of separation to the later of either of those two events.
