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2012: What is the Effect of an Attempted Reconciliation for a Divorce or Legal Separation on the Date of Separation and why is it Important?

In a legal separation or divorce, on the petition, both parties must state the date of separation. In many cases, both parties place down the same date of separation. In many other cases, the date of separation is disputed in either a divorce or legal separation. The family code provides that, in a divorce or legal separation, accumulations and earnings after the date of separation are separate property. Depending on the facts of either the legal separation or divorce, this can be very significant. In addition, in regards to the time line rule which is applied to the division of the member employee’s stock options and pension, the date of separation is very important. Furthermore, computation of any goodwill in a business will cease as of the date of separation.

The definition of the “separation date” is defined by one case as a parting of the ways with no intention in the present to resume the marital relations. The date of separation is mandatory in either a legal separation or a divorce. This is placed on the Petition for either a divorce or legal separation. In some divorce and legal separation cases, the parties either reconcile or attempt to reconcile. If the reconciliation is permanent and the legal separation or divorce dismissed and no judgment entered, then the date of separation in the initial pleadings is no longer valid. If the reconciliation is attempted, but fails, then the date of separation is still an issue. Since many try to reconcile and save their marriage, this is an issue which is not uncommon in the San Diego Superior Courts which hear family law cases.

The determination, by a Superior Court Judge, of what the date of separation is will be fact based. The key issue is conduct. One case in California recognized this holding that date of separation must be determined by parties' "subjective intent" legal standard, not the public-perception standard or an objective standard however other cases in California have held differently. Another case in California held that, as a general rule, the parties must be physically separated and living in separate residences as a predicate to date of separation. Parties who live temporarily in different places due to social or economic reasons are not "living separate and apart" for the purposes of Fam. Code §771 (a) per other California cases. A spouse who leaves home to take a job in a location different than where the married parties are residing and does not return cannot claim that their earnings are separate property simply by using this fact alone. Parties may also deem to be separated who are living in the same house and “under the same roof”.

The below factual patterns have been used in the past to evidence that the parties "separated," and, again, this is a decision that the San Diego Superior Court Judge will determine: living apart; moving out of the family residence; filing for dissolution of marriage or legal separation; moving in and cohabitating with a “significant other”; actively having sexual relations with another who is not the spouse and, conversely, not engaging in sexual relations with the spouse.

The below factual patterns have also been used in the past to provide evidence that the parties have not separated even though they may be living apart: seeing each other on a regular basis and communicating and eating together; buying property jointly; maintaining bank accounts which are joint; continuing the economic relationship; filing tax returns which are joint; filling out any financial documents which state that the parties are married; having joint credit cards and others.

If your case involves a dispute as to the date of separation, please feel free to contact us for a confidential and complimentary virtual consultation.

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