Determination of the Date of Separation?

The date of separation is a pivotal question that either the parties must agree to or have the court make a determination. The general presumption is that anything acquired after the separation date is separate property, whether it is an asset or debt. Similarly, anything acquired during marriage is generally considered to be community property. Therefore, the date of separation is an important determination for the parties that can have substantial financial implications.

The Code section is Family Code, Section 771. Because Fam.C. 771(a) cuts off the acquisition of community property interests at the point of separation, accurate identification of the separation date can be extremely significant at marriage dissolution. In some cases, the economic consequences of the determination can be substantial. “Separation” within the meaning of Fam.C. 771(a) requires more than a rift in the spouses’ relationship.

The date of “separation” occurs only when the parties have come to a parting of the ways with no present intent to resume their marriage and their conduct evidences a complete and final break in the marital relationship.
Spouses cannot be separated (“living separate and apart”) within the meaning of Fam.C. 771 unless (i) at least one spouse entertains the subjective intent to end the marriage; and (ii) there is objective evidence of conduct furthering that intent.A separation date determination does not require a finding that the parties jointly agreed the marriage was over; it suffices if the evidence demonstrates that either spouse perceived the rift as final. According to one case, both the intent to end the marriage and conduct evidencing that intent must be present simultaneously. The focus should be “on conduct that is contemporaneous with and demonstrative of the necessary subjective intent. Later conduct that is merely consistent with an earlier decision to separate does not support an earlier separation date.” There was a dissenting opinion in that case that may have some traction with the court, and therefore a rigid application of this rule, without reference to the particular facts and circumstances, seems unrealistic. Conduct may appear objectively inconsistent with a present intent to end the marriage because of emotional and practical difficulties in “breaking the news” to the children, changing legal title, closing bank accounts, dividing funds and opening new accounts, applying for new credit cards, and arranging for new housing, etc.

All evidence reflecting the parties’ words and actions during the disputed time should be examined objectively to determine when, during that period, the break in their marriage relationship became final. The objective test looks at the parties’ words and conduct to determine their subjective intent; it does not ask what society at large perceives. Whether the public believes the parties are separated is irrelevant to the date of separation determination.

The act of communicating intent to finally terminate the marriage is not itself sufficient conduct to support a finding of separation. For purposes of identifying the date of separation, “actions speak louder than words”—i.e., there must also be nonverbal conduct consistent with the proffered separation date.

Some examples:

  • The parties are not “separated” as contemplated by 771(a) where, despite the fact one has moved out of the family residence, their
    conduct toward each other evidences ongoing economic, emotional, sexual and social ties ( such as joint checking accounts, credit cards, tax returns; joint acquisitions; joint vacations; exchange of gifts and cards; continuing financial contributions to the marital community; attempted reconciliations, etc.).
    Such conduct is inconsistent with the requisite “complete and final break” in the marriage. [Marriage of von der Nuell]
  • Spouses were not “separated” for purposes of Fam.C. 771(a) where, although they discussed dissolution, they continued to reside together in the family home (albeit in separate bedrooms), utilize joint bank and credit card accounts, conduct financial transactions as husband and wife, and participate in occasional family meals, outings and vacations, and H invited W to accompany him on a business trip and acknowledged their wedding anniversary with flowers and a card.
  • The fact the parties mutually agreed to keep their separation a secret did not warrant a trial court conclusion they were not separated for purposes of Fam.C. 771(a) until a later date (March 2005). Specific instances of the parties’ objective conduct demonstrated W’s subjective intent that the marriage was irretrievably over before then (as of June 2004) despite what the “public” may have perceived: i.e., they had physically separated, they did not have sexual relations with each other, they did not commingle funds or support each other, they sought no counseling, and they agreed to hide their separation from family and friends (inferring there was in fact a separation to hide). [Marriage of Manfer].

Spouses may be living apart and yet not be “separated”, but according to one case, the reverse cannot be true—i.e., living apart physically is an indispensable threshold prerequisite to separation. Spouses “not ‘livingseparate and apart’ … unless they reside in different places” ] Separate dwellings not essential: Concededly, a separate dwellings predicate to separation could preclude all but the more affluent couples from establishing a separation date and ending the accumulation of community property. But “living apart physically” does not necessarily require the spouses to occupy separate dwellings. The Norviel majority’s “unambiguous objectively ascertainable conduct” test for separation under the same roof (see above) has received significant criticism from the bench and the bar. Most cases addressing the issue shun an “absolute” rule in favor of a flexible test that examines all of the evidence bearing on the relevant time span in the parties’ relationship. The California Supreme Court presently is considering whether, for purposes of establishing the date of separation, a couple may be “living separate and apart” when they reside in the same residence (Marriage of Davis).

The determination of the date of separation is a huge, pivotal issue in a dissolution of marriage or legal separation. Contact the family law attorney at the law offices of H. William Edgar to discuss the determination of the date of separation.

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