“Date of Separation – Proceed at Your Own Risk”
Los Angeles Daily Journal, Vol.111, Issue 222, November 16, 1998
Yogi Berra, renowned baseball catcher and manager, philosopher, semantician, and apparently legal scholar, succinctly (if inadvertently) summarized the holdings of a series of appellate decisions interpreting the meaning of “date of separation” when he said, “It ain’t over till it’s over.”
Where the parties differ as to when their marriage was “over” in the family law sense, the outcome of that dispute will affect the characterization, valuation and distribution of property, as well as spousal support issues including amount, duration, and terminablity.
Therefore, family law practitioners should be alert to date of separation issues, which can arise before or after one of the parties files a petition for dissolution of marriage. For example, it is not uncommon for clients to ask their attorneys to “put the case on hold” while they attempt to “work things out,” which may mean resolving their dissolution issues or may mean exploring reconciliation. While counsel cannot ethically promote divorce, neither should we abdicate our responsibility to advise our clients of the statutory and case law regarding the date of separation and the impact of a “trial reconciliation.”
The analysis begins with Family Code § 771 (former Civil Code § 5118), which defines separate property as “the earnings and accumulations of a spouse … while living separate and apart from the other spouse.” California is unique in that it is the only state in which earnings and accumulations between the date of separation and the date of marriage are separate rather than community or marital property.
A series of appellate decisions spanning a 20-year period commencing with the 1977 holding of In re Marriage of Baragry (1977) 73 Cal.App.3d 444, have made it increasingly clear that if there is any ambiguity about the date of separation, that ambiguity will be resolved in favor of the later date.
The Baragry court framed the issue succinctly:
What little law defines separation under Civil Code section 5118 holds that “living separate and apart” refers to “that condition when spouses have come to a parting of the ways with no present intention of resuming marital relations.” That husband and wife may live in separate residences is not determinative. The question is whether the parties’ conduct evidences a complete and final break in the marital relationship. [73 Cal.App.3d at 448 (citations omitted)]
Thus, the Baragry panel spoke to the objective indicia of the state of the marital relationship:
In Baragry, the parties maintained separate residences and had no sexual relations for four years. During that time, husband first slept on his boat, then took an apartment with his girlfriend. However, he maintained “continuous and frequent contacts” with his family, ate dinner with his wife at the family residence several times a week. He maintained his mailing address and voter’s registration at that residence. He took his wife on vacations, both with and without the children. He took the family to sporting events. He frequently took his wife to social and professional occasions. One Christmas Eve he slept at the family home. He sent her cards on Christmas, birthdays and anniversaries, including one card stating “I love you.” He filed an enrollment card at one of the children’s schools, stating the daughter lived at home with both parents. The parties filed joint income tax returns. Husband paid all the family bills. Husband regularly brought his laundry home to wife, who washed and ironed it.
The appellate panel addressed public policy concerns underlying date of separation issues and their relationship to characterization of property:
Property acquired during a legal marriage is strongly presumed to be community property. That presumption is fundamental to the community property system, and stems from Mexican-Spanish law which likens the marital community to a partnership. Each partner contributes services of value to the whole, and with certain limitations and exceptions both share equally in the profits. So long as wife is contributing her special services to the marital community she is entitled to share in its growth and prosperity. [73 Cal.App.3d at 448 (citations omitted)]
The court described the husband’s life as a “captain’s paradise, savoring the best of two worlds, and capturing the benefits of both,” while wife was still contributing her services to the community and husband was presumably benefiting thereby. Thus, the court held:
During the period that spouses preserve the appearance of marriage, they both reap its benefits, and their earnings remain community property. [73 Cal.App.3d at 449]
In re Marriage of Marsden (1982) 130 Cal.App.3d 426, went a step beyond Baragry, holding that even the filing of a petition for dissolution does not necessarily mark the date of separation.
In Marsden, husband alleged that there had been two periods of separation during the parties’ marriage and prior to their ultimate separation, and that the trial court incorrectly held that his earnings and accumulations during those two periods were community property. At the beginning the first period of separation, wife moved out of the family residence and filed for dissolution, but “took absolutely no further legal action for over three years.” 130 Cal.App.3d at 435. During those three years, the parties continued their sexual relationship, saw a marriage counselor, traveled together and spent holidays together. Although the wife wrote to her mother stating she was thinking about terminating the marriage, she testified that “it depended on how he acted toward me.” 130 Cal.App.3d at 434. The Marsden court held:
We do not feel that such evidence establishes as a matter of law that the parties had come to a parting of the ways with no present intention of resuming marital relations. Rather, the parties’ conduct would appear to be an attempt to effect a reconciliation on an international scale and certainly does not reflect a complete and final break in the marital relationship. [130 Cal.App.3d at 435]
Even the recitation of a date of separation in a dissolution petition or marital settlement agreement is not conclusive evidence of the date of separation. In re Marriage of Umphrey (1990) 218 Cal.App.3d 647. The Umphrey court drew this conclusion from its observation of “the idiosyncrasies of human relationships”:
As this case illustrates, it is not uncommon for parties to a marriage gone sour to live their lives separate and apart while maintaining some vestiges of the marital relation. Many marriages are “on the rocks” for protracted periods of time and it may be many years before the spouses decide to formally dissolve their legal relationship. In such situations, separate dates can often be “guesstimates” or approximations selected at random or without careful consideration. 218 Cal.App.3d at 657 n.2]
In re Marriage of von der Nuell (1994) 23 Cal.App.4th 730, went beyond the criteria established in Baragry and Marsden by adding a subjective or intent component to date of separation issues. Now, not only is the parties’ conduct as witnessed by third persons (for example, submitting joint credit applications) significant, but equally so is each party’s state of mind as to the viability of the marriage, and each party’s perception of the other’s state of mind.
In reversing a trial court’s finding of a date of separation some four years earlier than that alleged by the wife, the court of appeal held that the date of separation must be evidenced by both objective and subjective criteria:
In sum, because rifts between spouses may be followed by long periods of reconciliation, and the intentions of the parties may change from one day to the next, we construe Baragry to hold legal separation 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. [23 Cal.App.4th at 736 (emphasis in original)]
Citing Baragry, the von der Nuell court explained the public policy considerations that require evidence of a “complete and final break in the marital relationship” before separation may be found:
In considering whether the conduct of the parties was such as to transmute the nature of their property from community to separate, we also observe property acquired during a legal marriage is strongly presumed to be community property and that presumption is fundamental to the community property system. [23 Cal.App.4th at 734]
The von der Nuell court provided a useful analytical tool for counsel faced with a date of separation issue — a checklist of the conduct in which the von der Nuells engaged, which comprised both objective and subjective evidence that the parties’ date of separation was later than that found by the trial court, as a matter of law.
The objective evidence or conduct included maintaining joint checking accounts and credit cards, filing joint tax returns, and taking joint title to a car. Husband kept in close contact with wife, including frequent visits to the former family home. He took wife on vacations and sent her cards and gifts on special occasions. The parties went out socially and continued having sexual relations with one another. Husband contributed financially to the community. The parties discussed and attempted reconciliation during the period in question.
The subjective component in analyzing date of separation cases pertains to both parties’ states of mind. Both must believe that there has been a complete and final break in the marital relationship. In von der Nuell, although husband filed a dissolution petition in the interim, he never served it on wife. Wife sought the services of a marriage counselor and requested husband’s participation in counseling, but was refused. Wife felt the marriage was salvageable or that things could be worked out to the point of saving the marriage.
Taking all this evidence together, the von der Nuell court held that “during those four years while living apart, the parties continued to function as an economic unit and retained social, sexual and emotional bonds” such that the trial court’s finding of an earlier date of separation was erroneous as a matter of law. 23 Cal.App.4th at 737.
The following year, in In re Marriage of Hardin (1995) 38 Cal.App.4th 448, the court of appeal explained the relationship between the subjective and objective components of date of separation cases:
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. [38 Cal.App.4th at 453]
The court went on gave direction to trial courts faced with a date of separation issue:
The husband’s and the wife’s subjective intents are to be objectively determined from all of the evidence reflecting the parties’ words and actions during the disputed time in order to ascertain when during that period the rift in the parties’ relationship was final. [38 Cal.App.4th at 453]
The trial court in Hardin failed to consider a number of facts which the appellate panel deemed “extremely relevant” or “significant” to a determination of whether the date of separation was 1969 or 1983.
For 14 years after husband vacated the family home in 1969, the parties saw each other regularly and maintained an economic relationship. They acquired real property together. Husband continued to receive mail at wife’s residence and indicated on various forms that he still lived their. Wife remained a corporate officer in the family business. The parties signed bank documents indicating they were married and not separated and that all of their property was community. Husband himself testified that he did not make a decision to end the marriage until the end of that 14 year period. Durng that time, he sent her cards signed with endearments and never disclosed in anyone, including the wife, that he desired to end the marriage. The parties also maintained a social relationship, although the extent of that relationship was in dispute.
The trial court’s failure to consider those facts was error because:
All factors bearing on either party’s intention “to return or not to return to the other spouse” are to be considered. No particular facts are per se determinative. The ultimate test is the parties’ subjective intent and all evidence relating to it is to be objectively considered by the court. [38 Cal.App.4th at 452]
The court’s consideration of evidence of the parties’ intents is by preponderance of the evidence. In re Marriage of Peters (1997) 52 Cal.App.4th 1487.
Since the court must discern the parties’ subjective intentions and states of mind as to the viability of the marriage, parties and counsel must be alert to those actions which evidence that the marriage has not finally and completely broken down. Courts may misinterpret cordial relations and friendly gestures as indications that the marriage is not over.
Conversely, for a variety of reasons, parties are encouraged to engage in settlement discussions and to act cooperatively regarding their children. There are even court-sponsored programs, such as the pre-contemnors’ program in Los Angeles County’s Central District and the PACT program in some branch courts, which parents are often told to attend together.
In the best interest of the children, parents may choose to attend a child’s soccer game together. That act of parental unity might look to a judicial officer like marital togetherness, as conduct evidencing that the marriage has not broken down, as in Baragry or von der Nuell.
Similarly, a negotiation session may end on a loving or romantic note, which again may send one a message to one spouse and/or the court as a sign of potential reconciliation.. The risk of misinterpretation is particularly strong where one party is hopeful that the marriage has not ended, as in Marsden.
Counsel would do well to remember that in Marsden, the wife put off terminating the marriage, apparently waiting for some conclusive signal from her husband, because, as she said, “it depended on how he acted toward me.”
The consensus of the date of separation cases referenced in this article is that actions inform intent, so that one party’s statement that the marriage has ended in separation will not be sufficient if his or her actions speak otherwise. Counsel should take care to advise their clients to be cautious in how they go about settlement negotiations or child-related activities, because truly actions speak louder than words.
