Q. Why is the idea of 'physical separation' important in California
divorce or domestic partnership dissolutions?
A. The idea of "physical separation" is one of the most important
concepts to California matrimonial law. It determines presumptions based
upon time of acquisition as to what is, or is not, community property.
It is used to determine the length of marriage for purposes of deciding
how long someone must pay, or can receive, spousal support. We've
written a ton of stuff about this issue, and the laws have changed, changed
again, and changed once more! See 2017's
Family Code section 70.
Physical separation is the date that the marriage ends, for most practical
purposes. The date of physical separation is the date that community property
ceases to accumulate.
Family Code section 771 states "The earnings and accumulations of a spouse and the minor
children living with, or in the custody of, the spouse, while living separate
and apart from the other spouse, are the separate property of the spouse."
Once spouses separate, all their earnings and everything that is acquired
with those earnings are separate property of each spouse, respectively.
Similarly, upon separation each spouse is no longer liable for the debts
of the other spouse. The community estate is liable for a debt incurred
by either spouse "during marriage". During marriage "does
not include the period during which the spouses are living separate and
apart before a judgment of dissolution ... or legal separation...."
FC section 910. An exception exists as to "necessaries" except to the extent
that the parties are living separate by agreement and whether or not support
is stipulated by that agreement.
FC section 4302.
Separation is of critical importance to the expanding interpretation and
growing field of the law of fiduciary duties. The duty of confidentiality
that arises because of the marital relationship by legislative fiat (Family Code section 721) and which gives rise to major exposure for the conduct of spouses with
regard to property and money, ceases at separation - meaning spouses no
longer have the expectation and right of relying upon one another as trusted
partners. Fiduciary duties continue pursuant to
FC sections 1100
et seq. and
sections 2100 et seq. as to assets that already exist, or can be considered marital
opportunities arising after separation, until the time each asset in question
is divided by agreement or court adjudication. Fiduciary duties are land
mines. A good example of the consequences for breach of fiduciary duty
is the Rossi case, where a wife who won the lottery and then filed for
divorce the next day claiming she and her husband had already separated.
She fails to list the lottery winnings in her paperwork, and refused to
disclose it to the husband later claiming, among other things, that she
had been a victim of domestic violence. Because the husband had no idea
about the lottery winnings, he did not dispute the divorce or wife's
asserted date of separation until much later when one day he received
a letter intended for the wife by a company offering to buy out the winnings.
He called the State Lottery Board, and then filed a motion to set aside
the divorce degree and for damages for wife's fraud and breach of
fiduciary duty. The court ordered the wife to disgorge all her winnings
(100%) and pay them over to the husband.
The separation date is crucial to understanding reimbursement claims relating
to payment on joint and separate debts, or in fixing rights to real property.
For instance, California law provides that the community has an interest
in the appreciation of a residence which is owned, meaning title is held,
in one spouse's name alone where principal on a mortgage is being
paid down. This is called the Moore-Marsden approach to equitable reimbursement.
If the house appreciates after separation, the titled spouse may want
to argue that all that appreciation belongs to them. Date of separation
becomes important to the date of valuing the real estate and determining
the relative principal loan amounts.
It is crucial where businesses are involved, regardless whether they are
corporations, mom and pop shops, or sole proprietorships. For instance,
what happens when a spouse who controls or who is the business, which
was established before or during the marriage, continues to derive income
from it after the parties separate? Maybe the business goes up in value.
Perhaps it goes down in value through market factors, or maybe even the
spouse intentionally drives it into the ground in order to reduce the
amount that will be ordered to buy out the other spouse's interest.
In all these situations a date of separation determination is crucial.
Another common area where it comes up in with regard to pensions, whether
they be defined benefit plans or contributive benefit plans. Whatever
accrues to the spouse who holds the pension by way of his post-separation
contributions belongs to them.
Date of separation is also critical to determining the length of the marriage
for purposes of spousal support or alimony rights. It is a snapshot in
time with huge ramifications, including how long a spousal support obligation
may continue and when it might be terminated.
It is critical that you hire an attorney who understands how to litigate
and present the facts of physical separation. For a
January, 2014 update and review of current date of separation appellate decisions, click here!
Author: Thurman W. Arnold III, Certified Family Law Specialist