Is IT OVER WHEN I SAY IT’s OVER? Exploring the Date of Separation¹

Hon. Thomas Trent Lewis²

Judge Lewis is the Assistant Supervising Judge of the Family Law Division for Los Angeles. As an attorney, he was designated a Certified Family Law Specialist and was inducted into the American Academy of Matrimonial Lawyers. He teaches the CFLR Family Law Review Course, the Advanced Family Law Course, and the Expert Series on Evidence. In 2014, Judge Lewis became an emeritus member of the Association of Certified Family Law Specialists.

Introduction

Just as the date of marriage clearly identifies when the marital relationship begins, the date of separation demarks the time when property acquisitions by a spouse are generally separate property [Family Code Section 771(a)].³ Likewise, determining the date of separation impacts issues concerning apportionment of community and separate property interests; and once parties are separated, this change in the relationship impacts their respective fiduciary duties under the Family Code.⁴ While arranged marriages still occur in California, marriage is generally, viewed as a consensual relationship born from strong emotional ties. Likewise, separation usually occurs when one spouse determines the relationship has reached a point of irreconcilable differences that objectively bespeak the final breakdown of the marriage. Being estranged in a failing relationship does not necessarily mean you are separated. Similarly, living in an unconventional way during a marriage does not mean you are separated. So, when is the relationship "over?" Is it over when I say it’s over?⁵ Or does it take something more?