One of the most contentious issues in a divorce case is the date of separation, because that date has potentially huge financial ramifications. Makes me wonder whether that was the impetus behind singer Ben Harper’s recent change to the separation date in his divorce petition against actress Laura Dern. Given its significance, attorneys and parties need to give careful thought when setting the separation date.The date of separation is the key distinction between spouses’ earnings being under the purview of community property versus becoming “separate earnings” for purposes of property division. Fam C §771(a). The separation date also becomes a critical issue when valuing certain community property assets, such as a business or liability that may have changed in value over the course of the dissolution process.
The separation date is determined by both an objective element (usually, physical separation) and a subjective element (the intent of at least one of the spouses not to resume the marriage). Marriage of Hardin (1995) 38 CA4th 448, 451, 45 CR2d 308.
When trying to determine the all-important separation date, there are many facts that the court will consider. These facts are not only helpful in figuring out when separation occurred after the fact, but they can also be useful to think about before a separation, anticipating that they will be considered later if that separation date becomes disputed.
Here are some facts to consider in determining the separation date:
- When did spouse move out of family residence?
- Did he or she move back in? When and for how long?
- What kind of contact is made with the spouse, and how frequent is that contact?
- Does the “away” spouse have meals at the family residence? How frequently?
- Does the “away” spouse use the family home as a mailing address or for voter or driver’s license registration?
- Have the parties gone on vacations or to entertainments together, with or without the children?
- Has the “away” spouse sent letters, cards, or flowers or celebrated special occasions with the spouse remaining in the residence?
- Nature and frequency of reconciliation attempts, counseling, statements such as “I love you,” resumption of sexual relations.
- Did the parties continue to file joint income tax returns, acquire property together, or maintain joint checking accounts or credit cards?
- Has either of the parties denied to others that there was a separation?
- Have the parties attended social functions together as husband and wife?
- Does one party continue to provide spouse-like services or support (laundry, cooking, cash)?
- Did the parties decide the marriage was over even though they delayed notifying family and friends, while keeping their finances and other affairs separate?
- When did the parties’ separation demonstrate “the complete and final breakdown” of the marital relationship?
For everything you need to know about the critical separation date, go to CEB’s Family Law Financial Discovery, chap 8.
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