Date of Separation and Significance in a Divorce or Legal Separation in 2014 in San Diego: Part One

In the petition for divorce or legal separation in San Diego Superior Court, the date of separation must be listed. In the response to the legal separation or divorce petition, the date of separation must be listed as well. If the dates are the same, then this will not be an issue in the divorce or legal separation case. If the dates are different, then this may be a very contested issue since the law in California and, of course, San Diego is that the division of community property assets and debts are divided from date of marriage to date of separation. In addition, the duration of the marriage is very crucial in spousal support as marriages of less than ten years have a termination date in the judgment and marriages of more than ten years have an indefinite reservation of jurisdiction as well as characterization of income, retirement, good will, stock options, debts and others. California Family Code Section 771 (a) states that the accumulations and earnings of one or both spouses while they are living separate and apart are the separate property of the earning spouse. As such, retirement benefits, stock options, goodwill that increases as well as debts that are incurred after the parties' date of separation can be considered separate property. In most cases in San Diego Superior Court, there is no dispute as to the date of separation. In some cases, there is a dispute which leads to the immediate filing of a petition for legal separation and divorce. In other cases, there may or may not be a dispute but no petition is filed however the spouses have “gone their separate ways”. Months and/or years may go by before the spouses file in San Diego Superior Court. The issue then arises: what was the character of the property acquired and/or debts incurred during this time: community; separate or quasi community? To make this more complicated, there is a fiduciary standard when married and this can lead to an argument of a breach of fiduciary duty during this interim time period.

What does “living separate and apart” actually mean? Under California law, this refers to when spouses have come to a parting of the ways with no present intention of resuming marital relations. Whether or not there are separate residences is not conclusive however is one of the factors as will be discussed in more detail in part two of this article. The factual determination will revolve around whether the conduct of the parties evidences a final and complete breakdown of the marital relationship. The “test “ revolves around the intention of the parties. As such, this is a subjective standard and one spouse can claim they believed they were separated and the other spouse can claim that they are not. The intention of the parties is based on facts inquiry and the actual conduct of the spouses. The Court will judge against whether, objectively, this qualifies as the date of separation. The issue becomes when the intent to permanently separate was communicated to the other spouse. The legal standard is what a reasonable person would interpret the conduct of the parties after to show that either one spouse or both spouses believed that the marriage was irrevocably broken and the separation permanent. It is up to the Judge to make the factual and legal determination [no juries in family law court in San Diego Superior Court for date of separation trials] as to the date of separation and the Judge has discretion. Oral testimony and/or documents and correspondence [such as letters or e mails] can be filed with the Court to evidence the date of separation.

Whether your legal issue is the date of separation or custody and visitation or support or division of asset and debt or others, advice of an experienced family law attorney in San Diego can be invaluable. Feel free to make an appointment for your no cost and confidential appointment up to 30 minutes to discuss your individual case.