Prior to commencing a dissolution proceeding, a couple makes the decision to separate. Under the California Family Code, “separation” requires more than marital troubles. The parties’ legal date of separation occurs when the parties have come to parting of the ways with no present intent to resume their marriage and their conduct evidences a complete and final break in the marital relationship.
The date of separation is important to divorce proceedings because California Family Code section 771(a) states that earnings and accumulations while married persons are living separate and apart must be characterized as separate property. This means that following separation, each spouse’s income and earnings are their own property not to be shared 50/50 as community property.
The parties’ date of separation occurs when both a subjective and objective test have been met. First, either of the divorcing parties must have had the the subjective intent to end of the marriage, i.e., when one or both determined that reconciliation was no longer possible. Second, there must be objective evidence of conduct furthering that intent to end the marriage. In evaluating this factor, California courts will evaluate whether spouse acted or conducted him or herself in such a way that is consistent with the end of the relationship. Some examples of objective conduct might include whether the parties ceased sharing a marital home; actual physical separation of the spouses and obtaining new addresses; whether the parties continued conjugal relations; whether the parties maintained their family lives and continued to attend social outings together; or whether they continue to act jointly in financial matters. No particular facts are per se determinative of a date of separation. Rather, the court will consider all evidence of conduct that bears on the subjective intent of the parties.
When a couple decides to separate, it is important for the spouses to get in touch with an attorney to learn what steps are necessary to ensure the protection of their property. The San Jose family law attorneys at Lonich Patton Erlich Policastri have decades of experience handling complex family law matters. If you are contemplating divorce or separation, contact the San Jose divorce lawyers at Lonich Patton Erlich Policastri. Our Certified Family Law Specialists* can provide you with an in-depth analysis of your issues. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization