Is the Marriage Over or Not? That Is the Question!

Hamlet’s famous soliloquy “To be or not be to: that is the question” is an evocative line.  Whether one views Shakespeare’s character as melodramatic or contemplative, Hamlet captures the importance of a decision when the stakes are high, and in matters of divorce, the stakes are usually high.

One of the first things to determine when filing for divorce or legal separation is the date the parties separated. The date of separation is the date on which the marriage is legally over. Often, the parties agree on the date of separation, or the date of separation does not significantly impact the parties’ respective interests.  However, when that’s not the case, complicated issues can arise.

WHAT IS THE DEFINITION OF THE DATE OF SEPARATION?

The California Legislature probably didn’t intend for the definition of “date of separation” to result in a several decade philosophical debate about the fundamental constructs of marriage so the legal definition could emerge, but such is the case resulting in Section 70 of the California Family Code.

Family Code Section 70 (a) states the “’Date of separation’ means the date that a complete and final break in the marital relationship has occurred.” Section 70(a) continues that evidence of separation requires “both of the following: (1) The spouse has expressed to the other spouse the intent to end the marriage, (2) The conduct of the spouse is consistent with the intent to end the marriage. Section 70(b) states “In determining the date of separation, the court shall take into consideration all relevant evidence.”

So, is this a bright-line rule?  The answer is “NO.” Why? Because there are a multitude of issues that can introduce complications, in figuring out the ‘legal’ date when the marriage ends. How did either spouse express his/her intent to end the marriage? Have the parties continued to be intimate? Do they reside together or separately? Has there been discussion about reconciling?  Have steps been taken by one or both to reconcile?  Do the parties continue to represent themselves as a united couple to friends and associates? Have either retained divorce counsel? Are they undergoing marriage counseling?  If so, jointly or separately?  What arrangements have they made regarding their children?  Have they split assets or income?  While neither exhaustive nor necessarily determinative, the foregoing questions underscore why, when the issue is contested, the court must determine the date of separation based on the facts and all relevant evidence presented regarding the parties’ subjective and objective conduct.  

WHY IS THE DATE OF SEPARATION IMPORTANT?

Family Code Section 760 states, “except as 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 date of separation becomes relevant via Section 771 (a) which states, “[t]he 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.”

In instances where there is disagreement over the date of separation, the date can impact the division of community and separate property, the amount of reimbursements owed to a spouse, characterization of retirements/pension contributions, determination of length of marriage for purposes of spousal support, child custody and visitation issues, whether the spouses have upheld their fiduciary responsibilities, along with a number of other issues.

CONCLUSION

So, hearkening back to Hamlet, the answer to the question “what is the date of separation” can be a critical one to answer, and should be given ample consideration after evaluating the facts and ideally with the guidance of legal counsel.

Author Traci S. Mason is a family law attorney licensed in California with over 19 years of litigation experience.  You can reach her at mason@portersimon.com.

DISCLAIMER: This article is not a substitute for professional legal advice.  This article does not create an attorney-client relationship, nor is it a solicitation to offer legal advice.