A unique aspect of family law litigation is the often continuing relationship of the parties. Long before a divorce judgment has been entered, it is common for the litigants to still have a lot of dealings with each other because of their children, friends, or family events. During the divorce process, the parties may make friendly gestures to each other and have cordial relations. For example, in the best interest of the party’s children, they may jointly choose to attend a child’s soccer game.
Unfortunately, these types of amicable actions by parties may have significant legal consequences in determining the date the marital relationship did in fact end.
In California, the date that the marital relationship ends (known as the date of separation) is obliquely defined in Family Code Section 771, which states that all “earnings and accumulations” of the parties living separate and apart is that respective party’s separate property. This code section terminates the acquisition of community property. In a marital dissolution, determining which the precise date of separation is may decide who gets several hundreds of thousands, if not millions, of potential community or separate dollars.
In a series of appellate decisions spanning almost 30 years, starting with In Re Marriage of Baragry, 73 Cal.App.3d. 444 (1977), the courts have attempted to define what constitutes a date of separation and termination of the marital relationship.
Baragry involved a disputed period of separation of almost four years, during which Dr. Baragry had no sexual relations with his spouse and did not live with her (in fact he cohabited with his girlfriend). He did, however, repeatedly go on vacation with his wife, sent her Christmas cards and gave her gifts. He also spent the holidays with her, took to her social and professional activities, basketball games, and, most famously, came over to the house regularly with his laundry for his wife to wash and iron.
The Baragry court decided that since the parties had preserved the appearance of the marriage, the accumulations and earnings of the parties during that period of time would remain community property.
Since Baragry, the courts have held that even the filing of the petition of dissolution of marriage is not necessarily conclusive proof of the date of separation In Re Marriage of Marsden, 130 Cal.App.3d 426 (1982); In Re Marriage of Umphrey, 218 Cal.App.3d 647 (1990)
The appellate court further defined the issue in the case of In Re Marriage Hardin, 38 Cal.App.4th 448 (1995):
“The 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.”
Therefore, the parties need to have a subjective understanding that their marriage is over, manifested by outward actions. These actions can include living in two separate residences, as in In Re Marriage of Norviel, 102 Cal.App.4th 1152 (2002), or not applying for joint credit, as was the case in In re Marriage of von der Nuell, 23 Cal.App.4th 730 (1994).
As such, family law practitioners should take care to advise their clients to be cautious on how they go about settlement negotiations or child related activities with the other party so as not to create any ambiguity that the parties’ separation was not a final termination of their relationship.
Where the parties do not have a clear understanding that their martial relationship is over, these outward overt acts can become highly relevant, if not determinative, of the date of separation.
The relationship between subjective intent and objective evidence was discussed in the recent case of In Re Marriage of Manfer, (2006) DJDAR 1489. In that case, the parties had agreed in June, 2004, that their marriage was over, but to “keep up appearances” they had delayed making a public statement about it until after the holidays. Despite the certain objective manifestations of marriage such as going on vacation and having sporadic social contact, the appellate court was clear these measures were only done by agreement of the parties to avoid telling their three children of their pending divorce.
The appellate court found that the trial court placed too much emphasis on the quantity of objective manifestations:
“The [trial] court’s focus on the couple’s public persona’ was misdirected ….The question is not what society at large would have perceived but what the parties’ ’subjective intent’ was ‘objectively determined from all of the evidence reflecting the parties words and actions during the disputed time’ (citations) … There was no evidence at all on the issue of what outsiders might have believed, and we could as easily speculate that all of the couple’s friends and family knew they were witnessing a charade when the couple interacted on social occasions and trips, but were too polite or embarrassed to bring up the subject preemptively.”
In essence, the mere fact that the Manfers did continue to conduct themselves in public as a married couple was insufficient to override their subjective understanding and agreement that their marriage had in fact ended. “The date of separation test does not ask what the public thinks, but whether at least one of the parties intended to end the marriage, and whether there was objective conduct ‘bespeaking the finality of the marital relationship.’”
In light of Manfer, parties to a divorce can have cordial relations and attend family or parental functions, but concurrent with same to be safe, they should do something to memorialize their understanding that their relationship is over. E- mails, memoranda, or even voice mails could be used to demonstrate the parties’ true intent and understanding, where their pubic actions might indicate otherwise.
A date of separation issue that arises should be dealt with immediately. Its impact on the characterization, valuation and distribution of property, as well as spousal support, requires that a motion for separate trial be requested. Judicial Counsel Form FL315 specifically provides for a request for such a bifurcated trial on that issue alone.
Manfer demonstrates that the date that the parties announce to their friends and family that their marriage was over, will not be the decisive factor where the parties subjective intent can be established.
