Do you consider yourself to be “separated” from your spouse even though you are living under the same roof? This question likely strikes you as pretty subjective. After all, like minds may differ. However, understanding what it means to be legally “separated” from your spouse is of the utmost importance when going through the divorce process.

Whether you are “legally separated” from your current spouse is what ultimately dictates what your property rights are. Understanding the practical importance and legal definition of “separation” is essential to protecting your property rights in this day and age. 

Oceanside divorce attorneys,  Fischer & Van Thiel can help you navigate this complicated arena of family law and

Oceanside California Family Law Attorney

Let us help you through this difficult time. Contact Fischer & Van Theil Family Law.

ensure that your property rights are protected in adequate fashion. It goes without saying that deciphering “entitlement” to property that has been “shared” property for the duration of a marriage is an extremely controversial issue.

For instance, one spouse may feel entitled to the entirety of the savings account that he or she has earned all on his or her own working full time throughout the marriage. However, the other spouse in this scenario may feel that he or she is entitled to half of these funds since he or she spent the past 10 years caring for the children and the household. The means by which a scenario like this should be handled in the event of divorce is not an easy question to be answered. Who should get to keep the house? How exactly should that joint savings account be split up? Understandably, these are questions that typically lead to heated arguments and disagreements throughout the divorce process and which ultimately require help from a family law professional.  

To make matters even more complicated, 2017 has brought with it some changes in the Family Law Code that could drastically affect marital property rights. 

While defining the date of separation may seem like no more than mere semantics to most- and understandably so, it is an extremely important issue that presents constant challenges to our current legal system’s effort to find the “correct” definition. This is an issue that raises two key questions –  Practically speaking, “Who cares?” followed by the far more complicated question, “What factors makes me considered legally separated?”


If you are personally facing divorce and want to safely navigate this unavoidable obstacle and ensure that your property rights are protected, fully understanding what is considered legally “separated” is a necessary first step.


Why does my legal date of separation matter?

All property acquired after the date of separation is your very own personal, independent property. This is the property that is entirely your own and that which your spouse has no claim to. However, all property acquired before the “legal date of separation” is shared property. Namely, this property is community property, a portion of which your spouse has a legal right to. 

Whether it be income, real property, or otherwise, all assets acquired prior to separation is community property. All that which is acquired afterward is part of the community property pool which is to be divided up upon the dissolution of marriage. 

Similarly, the legal date of separation defines which debts and liabilities belong to which spouse. Those debts and liabilities that are acquired prior to legal separation may find themselves in your lap one day should they accrue prior to your separation. 

Even further, the date of separation dictates the amount of long term child support that one is entitled to. As such, ascertaining the date of separation as set forth by the current laws is a fundamental component to protecting your individual rights. 


What Does it Really Mean to be “Legally Separated”?

As of January 1st, 2017, Senate Bill 1255 incorporated new California Family Code Section 70. This Code Section maintains that date of separation means the date that a complete and final break in the marital relationship has occurred, as evidenced by the two following facts: 


(1) the spouse has expressed his or her intent to end the marriage to the  other spouse; and

(2) the conduct of the spouse is consistent with his or her intent to end the marriage.

(b)  In determining the date of separation, the court shall take into consideration all relevant evidence.


If you find yourself wondering what in the world this even means, you are not alone. Understanding the practical meaning and associated implications of this very important classification are not inherently clear.  

For starters, one spouse moving out of the family home is no longer a requirement of legal separation. Prior to 2017, if spouses were not “living separate and apart”, they were not considered separated (legally speaking) and any property acquired prior to physical separation was not considered independent property.  However, Senate Bill 1255 eliminated this clause. Physical Separation is no longer a requirement in determining whether two individuals are legally separated.  

Maintaining separate households and the accompanying economic struggles that go hand in hand with achieving physical separation in this day and age are the likely causal factors behind this change in the legal definition of separation. Today’s economy presents challenges to physical separation, thus resulting in more and more individuals residing in the same household long after the marital relationship has ultimately ended. 


What Can I Do About Property Rights?

Communication will be key here.  Clearly communicating your intent to end the marital relationship and ensuring that your conduct communicates that very same message will be the determining factor in defining the date of separation.  Express your intent to end the marital relationship to loved ones, save any physical written expressions of intent to end the relationship, and actively separate your finances as much as possible. 

Ultimately, this 2017 shift in family law has muddled the waters, even more, when it comes to defining the date of separation. The best way to protect your interests is to seek advice from a skilled divorce attorney. Protecting your rights and your future is the highest priority while going through a divorce. Fischer & Van Thiel wants to help.