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2016: How is the Date of Separation Determined in San Diego Superior Court for a Divorce or Legal Separation?


Before the change in the law, the date of separation in a divorce or legal separation could be based on subjective intent as well as objective evidence. The issue, for the family law case, is what is the date of separation for division of assets and debts. As many spouses continued to reside in the same household during their legal separation or divorce even though both of their intentions were that their marriage was over and both acted as though they were not married and [in some cases] had significant others during this time. In the petition and response for a legal separation or divorce, both parties list the date of separation. In most cases, this is the same date however there were many cases which had different dates since one spouse claimed that they did not intend the marriage to continue and the other spouse claimed that they did intend the marriage to continue. While separate residences was one criteria, there were cases where this did not mark the date of separation. This led to bifurcated trials on the issue of what would be the date of separation for division purposes under California community property law. The legal standard for determining the date of separation was by the preponderance of the evidence and not by clear and convincing evidence. Below are factors which the Court used to consider:

  • When was [or did] a filing for dissolution of marriage occur
  • Did one or both spouses move out of the family residence
  • Did one or both spouses move in with a significant other
  • Did the spouses live apart
  • Did both or one spouse engaging in sexual relations with a person other than their spouse or with their spouse

As above, a Judge could find that [even if the parties were living apart], this did not establish the date of separation:

Was there a continuation of an economic relationship:

  1. Did the spouses file joint tax returns
  2. Did the spouses maintain joint banking accounts
  3. Did the spouses buy property jointly as husband and wife
  4. Did they spouses execute financial documents stating that parties were still married such as filing a joint tax return as married
  5. Did the spouses maintain joint credit cards
  6. Did the spouses have “frequent interactions”:
    1. See each other often or daily
    2. Communicate regularly in person or mail or electronically
    3. Eat together
    4. Vacation together
    5. Go out together socially and
    6. Attend Charges or Padres or other sporting events together.
  7. Did one or both spouses remember special events by sending cards and gifts, and especially if the salutation was "love."
  8. Did one spouse bring home laundry
  9. Did one or both spouses continue to receive mail at family residence
  10. Did one or both spouses attempt reconciliation
  11. Did both or one spouse see a marriage counselor either jointly or separately

As you can see, this was a most fact determinative legal analysis and not all of the factors are listed above. Per the below, there is now a “bright-line” rule.


In 2015, the California Supreme Court issued a ruling on determining the date of separation. They posit the “bright-line rule” to promote fairness to both spouses and to provide some measure of predictability to attorneys as well as guidance to Judges. The holding is that, for date of separation, the spouses must be living separate and apart in different residences. In addition, the law looks to whether at least one of the spouses has the subjective intent that the marital relationship has ended which is to be evidenced by objective facts [such as conduct or words] to document that there was a final and complete break in the relationship of the marriage. This is not the full case text or law and, as you can see, complicated.


The law office of Doppelt and Forney, APLC can assist you in the legal analysis of your case and guide you through the most difficult process of a family law case. Their firm offers up to a 30 minute complimentary virtual consultation at their office so you can discuss your individual issues. Please feel free to call their office and set your appointment.

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