You Are Married BUT Are You Separated?

There are many considerations when filing bankruptcy. One of the more important considerations is whether you are Married or Married and Separated. I am leaving out those that are not married because clearly, they are single. More complicated is when a person is married but is separated. This is important because it can change: 1. Whose income is included in the petition and 2. What is community property.

California Family Code §70 states, “(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. (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 re Marriage of Davis (2015) 61 Cal.4th 846 and In re Marriage of Norviel (2002) 102 Cal.App.4th 1152.”

Let’s address this In re Marriage of Davis thing. In that case the law was the couple must be “living separate and apart.” The Legislature changed this so “living separate and apart” is no longer the rule. Ultimately, to be separated there must be a declaration of intent to the other spouse the marriage is over and the behavior and actions of the “separating” spouse who wants to terminate the marriage looks like someone who wants to dissolve it.

In 2017 in Marriage of Khan a couple had a fight in February, and the husband told wife to get out of the house. The Wife didn’t have money for that, so she moved into a different bedroom under the same roof. They had no intimate relations, went to a wedding together, and some kid’s soccer games together. The Wife moved out in December. During the months of February through December there was no shared access to money, there was no intent to reconcile, and they were living “separate lives.” The trial court reviewed the facts and found: “…the parties attended ‘one or two family weddings’ with their child but ‘they did not do anything to hold themselves out as a married couple, did not attempt to reconcile, did not attend counseling, and did not share a bedroom.'” February was the date of separation.

In determining whether a couple is separated requires a look at the facts surrounding the couple’s relationship. Remember though, although a married couple is separated, property acquired while married and together is still community property.