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Date of separation was five years before spouses stopped living together

The trial court acted within its discretion, said a First District California Court of Appeal in the case of In re Marriage of Davis, in its opinion issued October 25, 2013, when it found that the date of separation was a date five years before the couple stopped living together and two and a half years before the wife filed the petition for dissolution of marriage.

The date of separation is important for the courts in determining whether property is considered marital property or separate property and in determining the valuation date of the property. Generally, assets and income acquired during the marriage up until the date of separation are considered to be marital property, and property interests acquired after the date of separation are considered to be separate property. The date of separation can sometimes be a significant factor in the divorce proceedings, particularly if one spouse receives a large bonus, a commission or stock options just after, or just before, he or she claims to have separated from the other spouse.

State laws differ by jurisdiction in determining the date of separation. In some states it is the date when one spouse actually physically moves out of the marital place of residence. Other states determine the date of separation to be the date the spouses physically separate, even while still living together in the same house. In other states, the date of separation is the date when one spouse officially informs the other of the intent to file for a divorce. Others states define the date of separation as the date when a legal separation agreement is executed or the actual divorce papers are filed with the court.

Under California law, said the Appeals Court, the date of separation is determined by examining two components, one subjective and the other objective. The subjective factor determines if either party has a subjective intent to end the marriage. The objective factor determines if there is evidence of conduct a complete and final break in the marital relationship to further that intent.

In the Davis case, the Appeals Court affirmed the trial court’s finding that the date of separation, for purposes of dividing the parties’ property, was the date when the wife announced her intent to end the marriage and began separating the spouses’ finances, even though the husband did not vacate the family residence until five years later. The spouses began to use separate bedrooms years before the date the wife made the announcement.

Contemporaneous with her announcement to end the marriage, the wife presented the husband with a financial ledger itemizing the household expenses. She imposed a strict segregation of the parties’ individual finances. The court saw this as the “point that the parties’ dysfunctional relationship devolved to where they had essentially become roommates and coparents, maintaining separate finances and cooperating only to the extent necessary to maintain the household and cover their children’s expenses.”

Laws are constantly changing and vary by jurisdiction. Individuals facing matters involving domestic relations are urged to consult with a competent attorney for the protection of their legal rights.