[Source Material: Attorney’s Briefcase, Garrett Dailey, Esq., CFLS]

Probably one of the most misunderstand issues is the date of separation. Clients want to know what it is and what to do about it because of the important economic ramifications.

The date of separation is not “legal separation.” “Legal separation” is a formal proceeding that is the nearly the same as filing for divorce except that the marital status does not terminate.

The “date of separation” is a critical fact in a divorce or legal separation case. It can have important ramifications in many areas, such as the duration of spousal support, and characterization of property, income, and debt, as separate (100% to a spouse) or community (50/50 split between spouses).

Usually, the date of separation is not disputed: There’s a blow-up, one party leaves and a petition is filed in short order. In other cases, where nothing of financial significance occurs, it simply may not be important. However, in some cases, years may pass after the parties separate and before formal proceedings are initiated. In that period, what was the character of the property acquired and debts incurred?

How is the date of separation determined by a judge?

Fam. Code §771 (a) provides that the earnings and accumulations of a spouse while “living separate and apart” from the other spouse are the separate property of the earning spouse.

Family Code §70 defines “date of separation” as “a complete and final break in the marital relationship, as evidenced by both of the following: (1) The spouse has expressed to the other spouse his or her intent to end the marriage; and (2) The conduct of the spouse is consistent with his or her intent to end the marriage.” The court must take into account “all relevant evidence” in making the determination. The general rule was defined in Marriage of Baragry (1977) 73 Cal.App.3d 444, 448, as follows:

[L]Living separate and apart’ refers to ‘that condition when spouses have come to a parting of the ways with no present intention of resuming marital relations.’ [Citation.] That husband and wife may live in separate residences is not determinative. [Citations.] The question is whether the parties’ conduct evidences a complete and final break in the marital relationship.

The problem is that the test of “intention” is incredibly ambiguous. How do you know how to establish it, or refute it, to protect your rights?

There must be “unambiguous, objectively ascertainable conduct amounting to a physical separation.” This is especially difficult in marriages that were on the rocks for a long time, or where there were periods of reconciliation. “Intent” for a spouse can change from one day to the next.

The following circumstances have been found insufficient by courts:

  • Filing for dissolution of marriage;
  • Moving out of the family residence;
  • Moving in with a significant other;
  • Living apart;
  • Not engaging in sexual relations with spouse; and
  • Actively engaging in sexual relations with a significant other.

The problem in these cases was that there was contrary evidence to contradict intent.

Evidence courts often look to for contradiction includes the following:

  • Continuation of economic relationship, such as: filing joint tax returns, maintaining joint banking accounts, buying property jointly, executing financial documents stating that parties were still married and that their income was community property, and maintaining joint credit cards;
  • Frequent interactions, such as: seeing each other often, communicating regularly, eating together, vacationing together, going out together socially, and attending sporting events together;
  • Remembering special events by sending gifts and cards, especially if signed “love”;
  • Bringing home laundry;
  • Continuing to receive mail at family residence;
  • Stating on various forms that both parties reside at the family residence;
  • Testifying that s/he had not made up his/her mind to seek divorce;
  • Attempting reconciliation;
  • Seeing a marriage counselor.

It is healthy and paramount for parents to have frequent contact and to be considerate with one another. Do not be afraid to send holiday cards or spend time as a family for fear of economic consequences. Similarly, attempts to reconcile may not necessarily extinguish a prior date of separation. There are ways you can ensure the lines in the relationship are not blurred, and at the same time, be the best parent and spouse possible, to maintain a congenial relationship.

Lewellen | Strebe lawyers have extensive experience handling “date of separation” issues. Please contact us today for a consult to learn how the law may apply in your specific case.