California Family Code § 70 – “Date of Separation”

Plain-Language Explanation

California Family Code § 70 defines the “date of separation” as the date when a marriage has fully ended, marked by both spouses: first, one spouse telling the other that they want out, and second, that spouse acting consistently with ending the marriage. In simple terms, you are legally separated when one spouse clearly communicates an intent to divorce and follows through with actions (for example, moving out or closing joint accounts). If one spouse fails to say they are ending the marriage, even if they move out, the court looks at all the facts to decide the actual separation date. Section 70(b) makes clear the court considers all relevant evidence in finding that date. (Section 70 also states it was intended to overturn prior cases like In re Marriage of Davis and Norviel that had required spouses to live in separate homes.)

Examples: How § 70 Affects Property Division

Move-out and clear communication: Imagine a husband tells his wife “I want a divorce” and moves out on May 1. Under §70, their separation date is May 1. Any salary he earns or property he acquires after that date is treated as his separate property, not community property.
No clear communication, still living together: Suppose one spouse quietly moves into a spare room without telling the other they want a divorce, and they still share expenses and daily life. Under §70, the court may find the separation date is later – perhaps when one spouse finally speaks up. If a spouse never clearly said “I’m ending this,” property acquired during that period might remain community property.
Living together during a “trial separation”: It is possible for spouses to live under one roof after one has decided to end the marriage, as long as §70’s requirements are met. For instance, if a wife announces the marriage is over but they stay at home together a bit longer (to sort finances), their separation date is still the day she spoke up. All earnings or assets after that date would be separate. Conversely, if there is long overlap without any statement ending the marriage, property could continue to be community.

Published Court Cases

In re Marriage of Lee & Lin (2019): The Court of Appeal affirmed a trial court’s finding that the couple separated when the husband moved out and clearly intended to end the marriage. Because he expressed his intent, leased an apartment, and gave up the house keys, that date was legally considered their separation date. Everything he earned afterward was his separate property.
In re Marriage of Davis (2015): This California Supreme Court case, decided before §70 existed, held that spouses had to live in separate residences for their earnings to become separate property. Section 70 later abrogated this rule by removing the separate-home requirement.
In re Marriage of Norviel (2002): The court ruled that because a husband and wife still lived together, they were not legally separated even though he expressed intent. Section 70 reversed this logic by focusing on communication and conduct, not physical living situation.
In re Marriage of Hardin (1995): This Court of Appeal case articulated a two-part test for legal separation that aligns with current §70 law: intent to end the marriage and conduct reflecting that intent. This precedent influenced the wording of the modern statute.

Full Text of Family Code § 70

The current (2024) text of California Family Code Section 70 is:

(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 the intent to end the marriage; and
(2) The conduct of the spouse is consistent with the intent to end the marriage.
(b) In determining the date of separation, the court shall take into consideration all relevant evidence.
(c) It is the intent of the Legislature in enacting this section 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.

*Nothing on this page should be considered legal advice. This is simply a summary of information found on the Internet. Use at your own risk. This information has not been evaluated by an attorney, and it may be incorrect or obsolete due to changes in the law.