Derrick Taberski, Esq.

Determining Date of Separation in a California Divorce

In divorce and legal separation cases, the parties' date of separation can be a hotly contested issue. There may even be a trial on the bifurcated issue of date of separation before the remaining issues of the case are tried or settled. The reason date of separation can be such a hot button in a divorce is because two fundamental divorce issues flow from the parties' duration of marriage as determined by the date of separation - community property rights and spousal support.

Community property is defined in the California Family Code section 770 as follows: "Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property." The other side of the coin can be seen in California Family Code section 771 (a), which 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." Applying California law to a marriage situation, it is easy to see that while the parties are married, all the property acquired by the married person (with some exceptions stated elsewhere in the code) is community property and that the community property rights stop accruing once the parties have separated. Community property is considered owned equally by both parties and it is generally divided 50/50 in a divorce, while separate property is awarded 100% to the party who owns/earns it.

Spousal support rights are impacted by date of separation because, as stated above, the date of separation determines the parties' duration of marriage. Duration of marriage is a key element to determining long term spousal support. Family Code section 4336 (a) allows the court to retain jurisdiction over the issue of spousal support indefinitely when the marriage is of long duration, to wit: "(a) Except on written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal separation of the parties where the marriage is of long duration." Family Code section 4336 (b) reads in relevant part that "For the purpose of retaining jurisdiction, there is a presumption affecting the burden of producing evidence that a marriage of 10 years or more, from the date of marriage to the date of separation, is a marriage of long duration..." From a practical viewpoint, the above codes indicate that the court could award spousal support indefinitely in the case of a long term marriage, which from Family Code section 4336 (b) is generally understood to be a marriage of 10 years or more.

As potentially valuable property rights may stem from date of separation, determining the parties' date of separation is an important issue central to many divorce and legal separation cases. The party that loses his or her "date of separation" contention may have to give up more property or pay or receive support for a longer or shorter amount of time, depending on which side of the equation they are on. To determine the date of separation is to determine when exactly the marriage ended. In some cases, it is relatively simple to determine the date of separation, such as when one party unambiguously declares to the other party, "I want a divorce," promptly moves out, and does not reconcile. In other cases, it may be more difficult to determine the date of separation, as when the parties are still living together and have not begun living "separate and apart" as defined in the case law. If the date of separation issue is contested, however, then the date of separation must be proved in accordance with the relevant law.

A leading case on date of separation is In Re Marriage of Manfer (2006) 144 Cal.App.4th 925. In Manfer, the parties Samuel and Maureen Manfer had privately acknowledged that their marriage was over but kept that fact a secret from the world and their family members until some nine months later. Except for during the holidays, the parties did not live together; they had already disentangled their financial affairs, and did not sleep together. They maintained the fascade of marriage for social and family events. Maureen Manfer was earning over one million dollars per year during that time, and there were hundreds of thousands of dollars at issue depending on the parties' date of separation. If Samuel Manfer's later date of separation contention prevailed, Maureen's earnings during that nine month period would be community property and if Maureen's earlier date of separation contention prevailed, her earnings during that period would be her separate property. The trial court found the parties' date of separation to be the later date alleged by Samuel Manfer, and in doing so relied upon the case In Re Marriage of Baragry (1977) 73 Cal.App.3d 444.

In Baragry, the husband was an eye physician who had moved out of the house four years before filing for divorce. The court found the date of separation to be the date that he filed the petition for divorce and not four years earlier because, although he had moved out and was engaged in sexual relations with another woman, among other things he still ate dinner with his wife almost every night, took his wife and daughters on vacations, paid the household bills, filed joint tax returns, attended social and business events with his wife, and even brought his laundry home twice a month for his wife to wash and iron. The court used an "outsiders' viewpoint" to determine the parties' date of separation.

The appellate court in Marriage of Manfer goes against the holding in Baragry, relying on the date of separation test put forth in an earlier case, In Re Marriage of Hardin (1995) 38 Cal.App.4th 448. The Hardin date of separation test is stated as follows:

“The ultimate question to be decided in determining the date of separation is whether either or both of the parties perceived the rift in their relationship as final. The best evidence of this is their words and actions. The husband's and the wife's subjective intents are to be objectively determined from all of the evidence reflecting the parties' words and actions during the disputed time in order to ascertain when during that period the rift in the parties' relationship was final.” (38 Cal.App.4th 448, at p. 453)

Applying the Hardin test to the Manfer facts, the appellate court concluded that Maureen's earlier date of separation contention was the correct conclusion, as the parties' subjective intent could be observed by objective words and actions. Maureen Manfer had concluded the marriage was over and the lower court's findings of fact objectively supported her intent.

As can be seen above, date of separation can be a very important issue involving very complicated discovery and litigation. The Manfer date of separation matter was a bifurcated issue decided in a trial separate from the other issues in the divorce, and the trial took two days on that single issue. If there is a date of separation issue with your case, you could potentially lose valuable property and support rights. You should seek the assistance of an experienced family law attorney.

Disclaimer: The information on these pages is intended to provide background information only. It does not have predictive value and should not replace the advice of competent legal counsel. The outcome of any case depends on the specific facts and circumstances of each particular case.

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