In marital dissolution proceedings, one of the key elements which can be of considerable consequence with regard to divorcing couples’ property rights is their date of separation. Family Code section 771 states that the earnings and accumulations of a spouse while living separate and apart from the other spouse, are the separate property of the spouse. However, the statute does not specifically define “date of separation” or specify a rule for determining it.
A number of courts have attempted to enunciate guidelines and though there is no single standard to follow or a comprehensive list of factors to be considered, the consensus is that the date of separation occurs when either of the parties does not intend to resume the marriage and his or her actions bespeak the finality of the marital relationship.
Unfortunately, even that credible definition is not of much help as the issue of determining a date of separation is a factual one, which the courts decide on a case-by-case basis. In one California opinion, the parties married on June 16, 1973 and in June 2004, after a quarrel, the husband moved out of the family residence. Both parties, concerned about how their daughters might be affected by the news, agreed to hide their circumstances from family and friends. They continued to have social contacts and take occasional trips together, but they did not engage in sexual relations with one another, commingle their funds, or support one another. Husband filed a dissolution petition in April 2005, alleging the date of separation to be March 2005. Wife contended the couple separated in June 2004. The court agreed with the wife, stating since wife had no present intent to resume the marriage after June of 2004, and since both parties’ conduct supported a finding of a final and complete break in the relationship, the parties’ date of separation was June 2004. This case was the first in a series of cases to find an earlier date of separation.
In another court opinion, the husband filed his petition on October 14, 1975, but sought to fix the date of separation four years earlier, to coincide with the date he physically left the home. Although he stopped sleeping in the family residence, he ate dinner at home with his wife every night, maintained his mailing address at the home, went on family trips, filed joint tax returns and continued to send his wife birthday and anniversary cards. In this case, an important factor was that the wife desired a reconciliation and the husband did not tell her he was never coming back. The court found that husband and wife had not sufficiently disentangled their lives to carry out an agreement to separate, and therefore set the date of separation on the later date.
Indisputably, both an intention to separate and conduct supporting such intent must coexist to support a date of separation.
For more information, contact The Reape-Rickett Law Firm, at 661-288-1000, located at 23929 West Valencia Boulevard, # 404 in Valencia.