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Before the change in the law, the date of separation in a divorce or legal separation could be based on subjective intent as well as objective evidence. The issue, for the family law case, is what is the date of separation for division of assets and debts. As many spouses continued to reside in the same household during their legal separation or divorce even though both of their intentions were that their marriage was over and both acted as though they were not married and [in some cases] had significant others during this time. In the petition and response for a legal separation or divorce, both parties list the date of separation. In most cases, this is the same date however there were many cases which had different dates since one spouse claimed that they did not intend the marriage to continue and the other spouse claimed that they did intend the marriage to continue. While separate residences was one criteria, there were cases where this did not mark the date of separation. This led to bifurcated trials on the issue of what would be the date of separation for division purposes under California community property law. The legal standard for determining the date of separation was by the preponderance of the evidence and not by clear and convincing evidence. Below are factors which the Court used to consider:
As above, a Judge could find that [even if the parties were living apart], this did not establish the date of separation:
Was there a continuation of an economic relationship:
As you can see, this was a most fact determinative legal analysis and not all of the factors are listed above. Per the below, there is now a “bright-line” rule.What Is the Current Law per the California Supreme Court?
In 2015, the California Supreme Court issued a ruling on determining the date of separation. They posit the “bright-line rule” to promote fairness to both spouses and to provide some measure of predictability to attorneys as well as guidance to Judges. The holding is that, for date of separation, the spouses must be living separate and apart in different residences. In addition, the law looks to whether at least one of the spouses has the subjective intent that the marital relationship has ended which is to be evidenced by objective facts [such as conduct or words] to document that there was a final and complete break in the relationship of the marriage. This is not the full case text or law and, as you can see, complicated.How Can an Experienced San Diego Family Law Firm Help You?
The law office of Doppelt and Forney, APLC can assist you in the legal analysis of your case and guide you through the most difficult process of a family law case. Their firm offers up to a 30 minute complimentary virtual consultation at their office so you can discuss your individual issues. Please feel free to call their office and set your appointment.