Spouse Seeking Legal Separation Should Pay Close Attention to Filing Date

The California Family Code applies to parties seeking a divorce or legal separation, among other things. For quite some time now, California has been a “no-fault” state, permitting one spouse or the other to seek a divorce or separation without citing any particular fault on behalf of the other. The laws governing divorce proceedings vary to some extent from state to state. For this reason alone, it is imperative that you consult with a family law attorney from California, and specifically from the San Diego area. Local, experienced counsel would be able to effectively protect your legal rights at every stage of the proceedings.

Depending on the state you are in, the date of separation may impact important aspects of your divorce case. Interestingly enough, a recent family law case out of Maryland has been garnering some attention, most notably for its subject matter. Here, the couple married in 2006 and since March 2011, they split up and never lived in the same house again. The husband amended an earlier complaint to request divorce based on a 12-month uninterrupted separation. His wife moved to dismiss the complaint alleging that they had cohabitated and engaged in marital relations during the 12-month time period. If wife’s assertion was true, the “separation clock” would have to start all over again.

The husband admitted to communicating with his wife via text messages and phone conversations. According to the facts of this case, there were times when these conversations and text messages were of an explicit or provocative sexual nature. Husband also admitted that he had engaged in phone sex with his wife, and stated that the last time he did so was in January 2012. These specific facts are important to cases arising under Maryland law, which allows for divorce based on a 12-month separation period. Under the law, the parties must live separate and apart without cohabitation for 12 months without interruption prior to the filing for divorce. The circuit court dismissed husband’s complaint finding that he and his wife engaged in phone sex within the 12-month separation period. The court of appeals reversed finding that, “occasional instances of telephonic or electronic communication talking about sex, unaccompanied by intimate physical sexual contact, do not rise to the level of cohabitation.”

If this case took place in California, the main concern on behalf of one or both parties, with respect to the date of separation, would be the characterization of marital property. As we mentioned in an earlier blog post, 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. Once the parties separate, any property acquired would be considered “separate” – not subject to division. Significantly, under California case law, legal separation requires that the parties’ conduct show a complete and final break in the marital relationship. Courts will look to the conduct of the parties, where they live, their financial arrangements and other relevant factors concerning the parties’ relationship.

Issues pertaining to legal separation and divorce require strict attention to detail and the applicable law. If you are considering divorce, you are encouraged to contact a local, experienced family law attorney.

Roy M. Doppelt is a family law attorney representing parents for more than 20 years in Southern California. Our office 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 and Forney, APLC through the law firm’s website or give us a call toll-free at (800) ROY IS IT (769-4748).

Related Blog Posts:

Date of Separation Can Be a Significant Factor in Divorce Proceedings

Husband and Wife Filed For Divorce in Separate States – Only One Can Have Jurisdiction

Family Court Retains Jurisdiction After Divorce Judgment for Certain Claims

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