How Important is the Date of Separation In a Divorce?

In the recent case of Lee v. Lin, the California Court of Appeal clarified the rules regarding determining the paramount issue of date of separation of the spouses.

In the marital dissolution action, appellant challenged the trial court’s determination that the parties legally separated in May 2012 when respondent moved out of the family residence. Finding no error, the Court of Appeal affirmed.

After 26 years of marriage, Husband moved out of the family residence in May 2012. He rented an apartment in a neighboring city, and occasionally interacted with Wife with whom he maintained an amicable relationship. Husband filed a dissolution petition in August 2014.

Husband maintained the date of separation was in May 2012 when he left the family home. Wife contended the legal separation occurred when Husband filed for dissolution 27 months later. After a two-day hearing in 2017, the court found that legal separation occurred when Husband moved from the family home in May 2012.

Ruling from the bench and tracking the language of Family Code section 70 defining “date of separation,” the court found “Husband’s intention to end the marriage occurred on May 21, 2012 and his actions since then have been consistent with that.”

The court found Husband’s intent to end the marriage was clearly expressed by leasing an apartment, his intent was reinforced by relinquishing the key to the family home and refusing to give Wife a key to the apartment, and his post-move conduct was consistent with that intent. The court found the parties’ limited interactions after Husband’s move did not show an intent to reconcile and did not “overcome any clear act of ending the marriage by moving out.”

Family Code section 771 classifies property acquired after the date of separation as the acquiring spouse’s separate property.  This includes earnings, and the date of separation can be an important issue in determining which property is separate, or is community and has to be shared between the spouses.

In 2016, the Legislature in Family Code § 70(a) defined “date of separation” as the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following:

(1) The spouse has expressed to the other spouse his or her intent to end the marriage, and

(2) The conduct of the spouse is consistent with his or her intent to end the marriage.

A separation under section 771 requires not only a parting of the ways with no present intention of resuming marital relations, but also, more importantly, conduct evidencing a complete and final break in the marital relationship.

Marital separation for purposes of section 771 requires both the subjective intent to end the marriage, and objective conduct demonstrating such intent. The parties’ individual intents are objectively determined from all relevant evidence before the court.

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.  In determining the date of separation, the court shall take into consideration all relevant evidence.

The date of separation is a factual issue established by a preponderance of the evidence.

Wife contends that the trial court misapplied the law by presuming that Husband’s move to an apartment was sufficient to establish the date of separation, and by requiring Wife to rebut that presumption. But no such presumption appeared in the trial record. In fact, Husband argued in his trial brief that no presumption applied to either party’s proposed separation date. 

Husband presented evidence that in May 2012, he expressed his intent to end the marriage and that his conduct while the parties were living apart was consistent with that intent.

Wife presented evidence not to rebut any presumption, but for the court to weigh against Husband’s evidence in determining whether the May 2012 separation date had been shown by a preponderance of the evidence.

The trial court’s date of separation finding was based on the evidence presented, not on the application of a presumption.  

Citing the requirement in section 70 that the intent to end the marriage be communicated to the other party, Wife complains that the trial court did not find Husband had verbally informed her of his intent to end the marriage.

The statute requires evidence that “[t]he spouse has expressed to the other spouse his or her intent to end the marriage” and also directs the court to “take into consideration all relevant evidence.” (§ 70, subds. (a)(1), (b).) The statute does not require express findings as to a declaration of intent or conforming conduct.

In any event, Husband testified that he told Wife the marriage was over when he announced he was moving out, and the trial court found him credible. Husband’s testimony, even without an express finding, is evidence that supports the trial court’s decision and satisfies the statute.

LESSONS:

1.         In establishing the date of separation, one spouse should move out of the shared residence, and express to the other spouse that the marriage was over and an intent to end the marriage.

2.         Communications establishing the intent to end the marriage should be in writing, and confirm that both spouses received the communications.

3.         The conduct of the spouse seeking to end the marriage should be consistent with the intent to end the marriage, and filing a petition for dissolution can be an important factor.