Date of Separation Can Be a Significant Factor in Divorce Proceedings

2010-1244710-m.jpgMaking the decision to dissolve a marriage is no easy matter. There are many serious emotional and financial considerations for the parties to weigh. But once the spouses choose to divorce, they must both understand the legal implications of every action they take, especially when there is community property and/or children involved. One of the most significant questions that can arise early in the proceedings is the date of separation. Parties may not agree to what that date is, and more importantly, they may not realize the extent to which it can factor into the proceedings. A local San Diego family law attorney who has extensive experience handling divorce cases would be able to protect your rights and guide you through the process from the very beginning.

In California, there are three ways to end a marriage: by divorce, legal separation and annulment. California is a “no-fault” divorce state, which means that the party who is asking for the divorce is not obligated to prove that the other spouse did anything wrong. Even though parties are not required to find fault in the other party’s behavior, they still may not agree on some very relevant aspects of the proceedings. For example, parties often disagree as to the date of separation because it can identify a point in time when property or debt ceases to belong to both spouses. Judges are often called upon to settle the issue as it can impact whether a certain asset belongs to either or both of them.

In a recent case, the court of appeals was asked to determine (among many other issues) the date of a divorcing couple’s separation, in order to sort through the division of marital property. There were two separate residences and various other income and assets that the court was expected to identify and divide between the parties. Here, the husband claimed that the date of separation was February 2005, when the wife first filed this divorce action. The wife claimed it was in 2010, when she filed an amended petition for divorce. According to the lower court record, between 2005 and 2010, the parties resumed living together, filed joint tax returns, slept in the same bedroom, took Christmas photos, went on family vacations together and “had normal marital relations.”

The trial court determined the date of separation to be 2010, concluding that there was evidence of a total reconciliation after the first petition was filed. Under California law, legal separation requires that the parties’ conduct show a complete and final break in the marital relationship. Here, the court found that there was no “complete and final break” in the marital relationship until the husband moved out in April 2010.

The court of appeals affirmed the decision on this issue pointing out that the evidence described above was enough to support the trial court’s finding. The court further pointed out that the applicable standard is not a “public perception standard” but rather a “subjective intent” legal standard. By choosing the later date, the court would have to take into account any marital property accumulated until 2010, instead of the earlier date of 2005. While this is an unpublished decision, and parties may not rely on or cite to the opinion, it is important to understand how certain matters, such as the date of separation, can impact a divorce proceeding.

If you are a parent with questions about divorce, you are encouraged to contact Doppelt & Forney. Mr. Doppelt is an experienced family law attorney representing parents for more than 20 years in Southern California. Doppelt & Forney serves clients in Linda Vista, Encinitas, Scripps Ranch, San Diego, and throughout Southern California. For a free consultation with a dedicated and experienced family lawyer, contact Doppelt & Forney through the law firm’s website or give us a call toll-free at (800) ROY IS IT (769-4748).

Related Blog Posts:

San Diego Legal Separation: Have You Been Served With Legal Separation Petition and Summons?

San Diego Legal Separation and Divorce: 2012