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When Is a Separation Considered Final?

The Importance of a Final Separation

In a divorce, California courts rely on the date of final separation in matters concerning the division of property as well as determining spousal support.

Under California Family Code § 771, “[t]he earnings and accumulations of a spouse and the minor children living with, or in the study of, the spouse, after the date of separation of the spouses, are the separate property of the spouse.”

California Family Code § 70 defines “date of separation” as “the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following:

  • The spouse has expressed to the other spouse the intent to end the marriage.
  • The conduct of the spouse is consistent with the intent to end the marriage.”

In the context of spousal support, California courts will determine whether the spouse seeking support has adequate financial resources to allow them to live at the standard of living that the achieved at the date of their final separation.

The “Separate and Apart” Standard

Courts have interpreted the “separate and apart” as requiring a complete and final break in the marital relationship to be accompanied by “a parting of the ways with no present intention of resuming marital relations.”

Importantly, any proof that a separation was final is subject to a higher evidentiary standard. Many issues in civil cases must be supported by proof by a “preponderance of the evidence.” This means that the quantity and quality of evidence support that something is more than 50% likely to be true.

However, courts have applied the “substantial evidence” standard when it comes to determining whether a separation is final in divorce cases. This standard is higher than the “preponderance of the evidence” standard. Courts have held that this means that “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

Courts do not require evidence that a party made an express declaration of their intent to end the marriage. It is enough for a spouse to say something along the lines of “our marriage is over” at the time of separation.

However, if the parties continued to spend a lot of time together despite living separate and apart, this may be used as evidence to contradict a claim that their separation was final. For example, if the parties started vacationing together or continued romantic gestures, such as celebrating their wedding anniversary, tend to suggest that separation was not final.

Moshtael Family Law Delivers Quality Legal Services

When a couple goes through a divorce, dealing with the legalities and court procedures on top of facing the emotional hardships of transitioning into the single life can be too much of a challenge for many people. Fortunately, you can rely on our attorneys at Moshtael Family Law to guide you through the sophisticated legal issues of divorce.

Please call Moshtael Family Law at (714) 909-2561 or contact us online today to get started on your new life today.


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