Date of Separation

One of the most important things to determine in a divorce or legal separation is the date the parties separated. This "date of separation" and is often a hotly contested issue. In some cases it may be necessary and even prudent to have a separate trial/long cause hearing to determine the date of separation. This is referred to as a bifurcation. In order to settle a case, this may be required as what a person receives and is obligated to regarding assets and debts, as well as the right or obligation as to spousal support will hinge on the date of separation. The date of marriage and the date of separation determines the length of marriage and what exactly are the community assets and the community debts. This date of separation also determines when a party to a dissolution action regains the right to their income becoming their separate property again. The date of separation further determines when a party is no longer obligated for the debts of the other party for those debts occurring after the date of separation.

Just what is community property is defined by California Family Code, 770 which states: "Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property."

Separate property is defined by California Family Code, 771 (a), which states: "The earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, while living separate and apart from the other spouse, are the separate property of the spouse."

In essence, anything acquired by either party during the marriage, from the moment they say "I do" to when the couple make it clear that the marriage is over, is community property. There are exceptions to this which are covered by other Family Code statutes and case law. Without going into specifics, in general any gifts, inheritances, assets brought in to a marriage, debts brought into a marriage, or assets acquired during a marriage which are traceable to assets owned before the marriage are the separate property assets and debts of that party. Community property is owned equally by both parties and is divided 50/50 in a divorce, while separate property is awarded 100% to the party who owns/earns/owes it.

As stated above, spousal support is specifically effected as to length and duration by the length of the marriage. The duration of the marriage is critical in determining the right/obligation as to spousal support. Spousal support may be as short as « the duration of the marriage or until a party dies or remarries. This is addressed by Family Code, 4336 (a). This code section allows the court to retain jurisdiction over the issue of spousal support indefinitely when the marriage is of long duration. Family Code, 4336(a) provides:"(a) Except on written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal separation of the parties where the marriage is of long duration." Also Family Code, 4336 (b) reads in relevant part that "For the purpose of retaining jurisdiction, there is a presumption affecting the burden of producing evidence that a marriage of 10 years or more, from the date of marriage to the date of separation, is a marriage of long duration..." What this means is that these code sections show that a court could award spousal support indefinitely where there is a long term marriage, under Family Code 4336 (b), this is generally understood to be a marriage of 10 years or more.

The determination of the date of separation is critical in determining the rights of the parties as to assets from the marriage. This includes bank accounts, retirement accounts, stocks, bonds, all other financial accounts, personal property, business enterprises, partnerships, debts, and the list goes on. As you can see if a party loses their contention as to the date of separation this will directly effect what a party receives and/or owes in the resolution of their divorce and will be central to divorce and legal separation cases.

If a party to a divorce in Santa Clara County or anywhere in The State of California, they might have to give up more property, take more debt or less debt, or pay or receive support for a longer or shorter amount of time. When the date or separation is determined and fixed either by agreement of the parties or a finding of fact by a Court in Santa Clara County or The State of California, this will determine when exactly the marriage ended.

In Santa Clara County or in any other County in The State of California, at times this is easy to determine. This may be when one or the other party unambiguously declares to the other party, "I want a divorce," promptly moves out, and does not reconcile. However, sometimes it is much more difficult to determine the date of separation. This usually occurs when the parties continue to live together and they have not started living "separate and apart" as defined in the case law. If the date of separation issue is contested, however, then the date of separation must be proved in accordance with the relevant law.

DO NOT LIVE WITH THE PERSON YOU ARE DIVORCING. On 07/20/2015, the Supreme Court of California has rendered a ruling changing the concept of community and separate property law as it relates to spouses who want a divorce but continue to reside together. In essence, Family Code 771 states that when a couple live separate and apart after a petition for dissolution is filed for income post separation to be deemed the separate property income and or asset or debt of the other party.

The Case of In Re Marriage of Davis, (07/20/2015) S215050, over ruled the California Appellate Court as to the date of separation. The Davis Court, addressed the question: consider whether a couple may be living separate and apart for purposes of section 771(a) when the live together in the same home. The Supreme Court of California has concluded that the answer is no. The court's reasoning is that parties must be living in separate residences if their incomes, post separation assets and debts, are to be deemed separate property.

In the Davis case, the couple married and had children together. However during the marriage they were not intimate, and only stayed together for the sake of the children. The couple maintained separate bedrooms, cooked their own meals, did their own laundry. The couple did maintain a joint bank account, and attended sports and school events for the children together. 13 years after the date of marriage and having lived together in this manner, the wife who was unhappy with the contribution of the husband, asked for divorce. The couple still continued to live together and even went on a vacation together with the children but not with each other out of the presence of the children. They even continued to celebrate holidays as a family as well.

2 years after asking for a divorce, the wife finally filed for dissolution of marriage. The wife listed the date of separate as the date she originally asked for a divorce. Still, three more years go by with the wife still living in the home with the husband despite having filed for divorce. The wife finally moved out of the home on July 1, 2011. This is the date the husband listed on his amended response to dissolution of marriage.

The Supreme Court of California agrees that the date of separation is a factual issue. The resolution depends on Family Code 771(a). In looking at and considering a statute, the court must look to the plain language of the statute, and the usual meaning is given their words. If there is no ambiguity in the words of the statute the plain meaning will control.

What it comes down to is the plaining meaning of living separate and apart. The statue specifically uses these words. The statute contemplates spouses living away from each other with at least one spouse having an intent to terminate the marriage. This contemplates a physical separation of residence. In looking at case law the court looked at The Marriage of Hardin (1995) 38 Cal. App. 4th 448, 451, which holds that both the subjective intent to end the marriage nad the objective conduct demonstrating such intent is necessary for a legal separation. We have to look at whether the parties, either or both of them, looked at their rift in the marriage as final. We have to look to the parties words and actions. The court concluded that section 771(a) was meant by the Legislature intended the statutory phrase "living separate and apart" to require both separate residences and a demonstrated intent to end the marital relationship. Living in separate residences is an indispensable require for a finding that spouses are living separate and apart.

The date of separation can be a very important issue involving very complicated discovery and litigation. The Manfer date of separation matter was a bifurcated issue decided in a trial separate from the other issues in the divorce, and the trial took two days on that single issue. If there is a date of separation issue with your case, you could potentially lose valuable property and support rights.