The Petition – Part 2 – Statistical Facts – Date of Separation

February 14th, 2014

In Section 2 of the Petition, the Petitioner lists the Date of Marriage and the Date of Separation (“DOS”).  These dates are important and can impact spousal support and the division of community property.  Most people can agree on the Date of Marriage.  But what is the DOS?

Before we answer that question, why is it important to know that date?  A longer marriage is a factor to consider in the length of time that a party may have to pay spousal support.

Also, property acquired (i.e. money earned) during marriage is community property (subject to some exceptions that are beyond the scope of this entry) and therefore subject to equal division.  However, money earned after the date of separation is that person’s separate property.  “The earnings and accumulations of a spouse … while living separate and apart from the other spouse, are the separate property of the spouse.”  Fam. Code § 771 (a).  (emphasis added)

But what does it mean to live “separate and apart”?  The Court’s have said that separation requires not only a parting of the ways with no present intention of resuming marital relations, but also, more importantly, conduct evidencing a complete and final break in the marital relationship.  In re Marriage of von der Nuell (1994) 23 Cal.App.4th 730, 736.  A court must look at both a subjective and objective component.  In re Marriage of Norviel (2002) 102 Cal.App.4th 1152, 1158–1159.

The subjective component examines whether either of the parties harbors the subjective intent to end the marriage.

The objective component examines whether there is objective conduct evidencing and in furtherance of that intent.  Id.

The California Supreme Court will address this very issue later this year in In Re Marriage of Davis (2013) A136858.  Click here for an article on this case.

What objective conduct is the Court looking for?  In In Re Marriage of von der Nuell (1994) 23 Cal. App. 4th 730, though the parties physically separated years before, they a) maintained joint checking accounts, b) acquired joint title in a car, c) spent significant time together, d) went on vacation together, e) sent cards to each other, and f) maintained sexual relations.  Thus, though Wife subjectively decided the marriage would not work, the objective conduct was insufficient to find a date of separation matching that subjective intent.  Even returning to the family home to do one’s laundry may extend the date of separation.  In Re Marriage of Bagary (1977) 73 Cal. App. 3d 444.

Before entering your Date of Separation on your Petition (or Response), talk to an experienced family law attorney.