The date of separation is one of the most litigated issues in a divorce case. Its determination can have a significant economic consequence in the outcome of the case. The reason being, a spouse’s “earnings and accumulations” after separation are his or her separate property. A spouse’s “earnings and accumulations” while living separate and apart from the other spouse are his or her separate property as well pursuant to Family.Code. § 771(a)).
“Separation” requires more than a rift in the spouses’ relationship. The date of “separation ” occurs only when the parties have come to a parting of the ways with no present intent to resume their marriage and their conduct evidences a complete and final break in the marital relationship. In simple terms, it the first point in time when either party decides to finally end the marriage with no intent to return to their spouse. The burden of proof required to prove this is a preponderance of the evidence. A spouse must show that 1) the spouse entertains the subjective intent to end the marriage, and 2) there is objective evidence of that intent. A party’s intent may be evaluated in terms of the spouse’s words and conduct evidencing this intent and this should occur simultaneously.
Moving out of the house from where your spouse resides may not be sufficient to signify a separation. The party’s conduct toward each other evidences ongoing economic, emotional, sexual and social ties ( such as joint checking accounts, credit cards, tax returns; joint acquisitions; joint vacations; exchange of gifts and cards; continuing financial contributions to the marital community; attempted reconciliations,) may show conduct inconsistent with a complete and final breakdown in the marriage. Discontinuing sexual relationship with your spouse and commencing extramarital cohabitation may not suffice to signify a separation date either.
The parties must be living apart physically. The Court usually looks at all objective facts and circumstances in determining whether the parties are living apart physically. Living in separate dwellings alone may not meet this requirement. Some couples have successive series of separation then reconciliation. The act of reconciling in essence vitiates any evidence of a complete and final breakdown of the marriage. Due to the heavy factual showing required in litigating this issue, the date of separation is susceptible to trial bifurcation.
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Attorney Kenneth Ursua Reyes was President of the Philippine American Bar Association. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 700, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail [email protected]; Website kenreyeslaw.com.
