Date of Separation and Significance in a Divorce or Legal Separation in 2014 in San Diego: Part Two
There are rules which are considered for the date of separation determination and does not matter whether this is a divorce or legal separation. Some San Diego Superior Court Judges may feel that the parties must be living in separate residences and physically separated before a date of separation would be ordered. Spouses who live [temporarily] in different places due to economic or social reasons such as extended travel for employment, military deployment and others are clear not living apart and separate.
California Family Code Section 771 (a) governs. The factors below, one would think, would necessitate a finding of date of separation but in some cases have not. The below conduct is certainly relevant. It may not be sufficient if contrary objective evidence contradicts the conduct:
- Filing for legal separation or dissolution of marriage in San Diego Superior Court
- Moving out of the community property house or rental where living with spouse and/or children
- Moving in with another even in a romantic relationship
- Not living together
- Not engaging in sexual relations with spouse or
- Engaging in sexual relations with someone other than the spouse.
There are many types of evidence which a Court will accept both oral and documentary. There is also direct and indirect evidence. Some evidence will not be admissible due to evidentiary objections such as hearsay, no personal knowledge, cumulative, illegally obtained, insufficient foundation and many others. Assuming the evidence is admissible, below are some examples of evidence regarding the date of separation. -Continuing with the economic relationship of spouses. Examples include filing joint tax returns, maintaining bank accounts which are joint, buying property together and holding as husband and wife and married, and maintaining joint credit cards.
- Frequent interactions with each other. Examples include, but are not limited to, continuing to see each spouse often, communications with spouse on a regular basis, eating together either at home or out, and going on vacations together and can even include going to the Charges and Padres games together.
- Sending gifts and cards for birthdays, anniversaries and holidays and especially significant if signed: Love, Spouse
- Having spouse do laundry which is brought to the other spouse’s residence.
- Receive mail at marital residence and not changing address with United States Post Office.
- Stating on job applications, credit card applications and other official forms and documents that both spouses reside at the family residence.
- Testimony that spouse had not made up their mind to seek divorce if credible.
- Attempting to reconcile.
- Marriage counseling.
The determination will be based on the facts and evidence and law. The evidence will be weighed by the Judge.
In sum, the ruling of the Court for the parties' date of separation will be a fact-based inquiry where evidence that is objective is weighed for the following determination: whether a “reasonable person”, knowing all the facts, would believe that the spouses had come to a parting of the ways with no present intention of resuming their marital relations.HOW CAN A SAN DIEGO FAMILY LAW FIRM HELP WITH YOUR CASE?
The law firm of Doppelt and Forney, APLC can help with date of separation resolution and litigation if absolutely necessary. The law firm offers a free consultation up to 30 minutes in their office and feel free to make an appointment to discuss your family law needs. The consultation is completely confidential whether or not you hire the law firm.