Determining the Date of Separation in California Divorces

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If you are considering filing for divorce in California, or filing for legal separation, you may be wondering if it matters what date you choose to actually ‘separate’ from your spouse. As an experienced family lawyer in Los Angeles will tell you, this date can be of great significance, as California uses the date of separation for determining property interests (i.e. property acquired by a spouse after the date of separation is considered to be that spouse’s separate property, while property acquired before the date of separation is community property. To determine the date of separation is to determine when exactly the marriage ended. Before you make any decisions about your marriage, it is wise to discuss your options with a trusted family lawyer.

For many couples, the date of separation may not be that easy to determine, and often, each spouse has their own idea of the actual date. Fortunately, the courts have a solution. If the date of separation is unclear or the parties disagree, the court will examine the intent of the parties. Again, this date is often pivotal, as the spouse that loses his or her “date of separation” contention may have to give up more property or pay or receive support for a longer or shorter amount of time, depending on his or her situation.

Is There a Test For Determining a Date of Separation?

There are the cases where one spouse unambiguously declares to the other party, “I want a divorce,” promptly moves out, and does not reconcile. In these cases, it is easier to determine the date of separation. The courts are aware, however, that financial, cultural, and/or other factors may not make this cut and dry option a reality for some couples. If separated spouses are still living in the same home, there are ways to ensure ‘physical’ separation in the eyes of the court.  Accordingly, “the evidence would need to demonstrate unambiguous, objectively ascertainable conduct amounting to a physical separation under the same roof.” Discuss this concept in further detail with your Los Angeles divorce lawyer.

A well-known example of conflicting dates of separation occurred in the case of In Re Marriage of Manfer (2006) 144 Cal.App.4th 925. In Manfer, the parties (Samuel and Maureen Manfer) had privately acknowledged that their marriage was over but kept this information from colleagues, friends, and family for about nine months. While they maintained the facade of marriage for social and family events, the parties did not live together, except for during the holidays. Additionally, they disentangled their financial affairs and did not sleep together. Maureen was earning over one million dollars per year during that time, and at issue were hundreds of thousands of dollars of her income, depending on the parties’ date of separation. If Samuel’s later date of separation contention prevailed, Maureen’s earnings during that nine month period would be community property and if Maureen’s earlier date of separation contention prevailed, her earnings during that period would be her separate property. In the end, Maureen’s earlier date prevailed as the parties’ subjective intent could be observed by objective words and actions. An experienced family law attorney can explain these ‘tests’ as they apply to your specific case.

Is Physical Separation Enough to Show a Couple is Separated?

No, in many cases, physical separation is not enough to show that you and your spouse are separated. Some people live apart from each other for extended periods, but do not intend to end their marriage. Therefore, the court will look at the facts from an “outsider’s viewpoint” to determine the parties’ intention. It is important to note that in the end, the “ultimate question to be decided in determining the date of separation is whether either or both of the parties perceived the rift in their relationship as final. The best evidence of this is their words and actions. The husband’s and the wife’s subjective intents are to be objectively determined from all of the evidence reflecting the parties’ words and actions during the disputed time in order to ascertain when during that period the rift in the parties’ relationship was final.”

As can be seen above, date of separation can be a very important issue involving very complicated discovery and litigation. If there is a date of separation issue with your divorce, you could potentially lose valuable property and support rights.

To discuss legal separation, or another family law related issue, contact the Los Angeles divorce lawyers at Walzer & Melcher today.

Walzer Melcher. Exclusively Family Law.