At the beginning of a divorce proceeding in California and even in a legal separation, the initial court form asks when is the Date of Separation. Your answer to this question could have a tremendous impact on division of assets and debts and spousal support. Consequently, I want to give more feedback on how to calculate the date of separation.
Right now, there is a famous celebrity couple that starred in Mr. and Mrs. Black together, who are going through a divorce. Moving trucks were recently spotted at Mr. Black’s house, and it is speculated that Mrs. Black was moving out of the marital home. The actual date of separation however, may have occurred earlier (or later) depending on the circumstances and unique facts of their marriage.
The date of separation, when a couple are “living separate and apart,” is considered the point at which earnings and accumulations of a spouse are changed from community property to separate property. As you can imagine, determining when a couple is “living separate and apart,” can be difficult. When one party moves out of the marital home, that could be evidence of intent to live separate and apart but if the party that moved out frequently returns to the marital home, resumes sexual relations with the other party, or takes trips or makes public appearances a married couple, a court may be less inclined to use the move-out date as the official date of separation. I had a Sacramento County trial a few years ago concerning the date of separation where the parties listed dates of separation that were over 7 years apart! (PS. The judge agreed with me and my client’s alleged date of separation)
In Marriage of Bargary, 75 Cal. App. 3d 444, (1977), the court held that “when spouses have come to a parting of the ways with no present intention of resuming marital relations,” this is considered the date of separation. The Court emphasized examining the parties’ conduct, which “evidences a complete and final break in the marital relationship.” It is not so much the parties’ intentions that matter but rather their actual conduct during the relationship.
In Bargary, the husband moved out of the family home in August 1971 but didn’t file his petition for dissolution until October 1975. During this time period, even though he was not living in the marital home, he lived on his boat and apartment and stayed at his apartment with his girlfriend, he still took his wife on outings, social events, and took their two daughters to trips and basketball games. He even continued to take his laundry home (his wife continued to do his laundry!). Thus, the court determined that even though there were no marital relations there was the “facade of a marital relationship.” The Court of Appeals ruled that the later date, when the husband filed the petition for dissolution in October 1975, was the actual date of separation.
In Marriage of Manfer, 144 Cal. App. 4th 925 (2006), the husband Samuel argued for a later date of separation in March 2005 and the wife Maureen argued for an earlier date of July 2004. During the time period between July 2004 and March 2005, Maureen earned several hundred thousand dollars, which could be considered community property, which might mean that her husband would receive half. Samuel and Maureen kept up appearances that they were married and kept the separation secret from friends and family, even though they did not have marital relations and did not share any funds or support one another financially. The Court of Appeals found that “the best evidence is their words and actions” based on not what society at large would have perceived but rather the parties’ “subjective intent” as reflected in their words and conduct during the alleged period of separation.
At the end of the day, courts will not just weigh one fact but will look at the big picture to determine when a couple is actually living separate and apart. Perhaps the moral of the story is this: don’t do laundry at your soon-to-be-ex-spouse’s house. Please contact me if you have questions about the date of separation or any other family law issues.
Call (916)877-6177 to learn more or for a free consultation on your specific matter. You can also visit my family law website for more information.