If DATE OF SEPARATION Is Contested, What Do Courts Look At?

Q. If I contest date of separation, what evidence do courts look at?

A. The question for trial courts is: Does one or both spouses objectively and subjectively act and appear as though they intend a separation? It only takes one of the two, because either can legitimately harbor and intention to separate and finally terminate the relationship - consent to dissolution is not required in California. BTW, see new Family Code section 70 which becomes effective on January 1, 2017!

Objective evidence of separation includes very prominently whether the spouses continue to live under the same roof. Spouses that do not maintain separate residences do not appear to be living separately, even where they are occupying different rooms within the same address. It becomes quite problematic for courts to determine what is going on inside the dwelling, and if they are still maintaining intimate relations, and family courts desire to avoid the "liar's contests" that so often accompany the stories of couples whose interests have diverged.

The fact of filing a dissolution, itself, has been found by appellate courts to be insufficient to prove physical separation as in a case where the husband filed, but went off on a international speaking tour for two years and then returned, who discovered in the court's view the marriage had continued all along.

In another case, the husband moved out to live with his girlfriend, but brought his laundry home to the wife each week to do every week. This was not a physical separation.

A separation to be effective needs to reflect a final breakup in the marriage. Ambivalent, on and off again, spouses are difficult to evaluate but the court is always going to error on the side of finding the parties have not separated if the evidence is inconclusive. This is because the policy of the law is to promote marriage, and court's are reluctant to second guess parties who fail to act with exquisite clarity. Reconciliation is a related topic, and where it is found to exist downstream (so called 'serial relationships' of get mad and make up) it will wipe out an otherwise valid physical separation.

Today, in this economy, the notion that parties must be living in two households in order to show convincing evidence of an intent to separate may be unrealistic and unfair. Many couples are forced by financial constraints to live at the same address, unfortunately loathing most or every moment of it. This is a new development in the law of physical separation in California, and may lead to some new appellate court decisions which liberalize the existing standards, and most notably the holding of the case of Marriage of Norviel. Norviel is a middle level appellate decision which is not binding on California Trial Courts, but may be followed by them as the judges feel is appropriate. That decision essentially requires that the parties, if they want to be considered separated, must:

  • Clearly communicate the intent to separate to the other mate and everyone else you both know
  • Move out physically or physically partition the house (nail the doors between rooms shut!)
  • Divide financial accounts, including joint checking and credit accounts (cancel joint cards)
  • Decline marital counseling
  • Cancel prepaid vacations and do not take trips together
  • Don't take your laundry "home"
  • Don't date your spouse and don't be intimate
  • Tell anybody who asks the marriage is toast and you are filing for divorce
  • File for dissolution
  • Still expect to lose the issue if you don't move the divorce forward, earlier rather than later

Fortunately, there are other cases which trial courts can follow which are not nearly so draconian if circumstances are different but nonetheless convincingly demonstrate a final and complete break in the marital relationship.

By the way, when date of separation has important consequences - which may happen when characterization of property as community or separate is required - consider bifurcating that issue so that it can be tried and decided early on.

The take away from all of this is: You cannot have your cake and eat it too! Beware, and be clear or assume the risk.