The date of separation can be the subject of much dispute and potential conflict. A colleague of mine recently had a seven day trial just to determine the date of separation. Much was at stake.
Most spouses believe that moving from the family residence is the demarcation date for their separation. Many times this is not the case. In order for there to be a true separation, one spouse must have the intent to permanently and forever sever the marital relationship. This “intent” to permanently and forever sever the marital relationship is at times much harder to prove than most understand. A spouse’s intent is subjective, existing in his or her own mind. However the subjective intent of a spouse is analyzed by his or her objective conduct.
There are many California marital dissolution cases where one spouse thought he or she was separated on a certain date, only to find that he or she was not. If the spouses are participating in marriage counseling; going to dinner once a month; taking vacations together; filing taxes jointly; and/or engaging in other activities together, any one or a combination of those activities might evidence “objective” conduct that one or both spouses did not intend to permanently sever the marriage and thus a court will likely determine a later date as the separation date.
This later date of separation can be instrumental in the characterization, valuation and division of community assets and debts. California public policy encourages the marital relationship and most courts will attempt to find objective evidence of conduct by either or both spouses to confirm a longer rather than shorter marriage.
There are California dissolution Appellate and Supreme Court cases where the spouses lived in separate homes for five or ten years or more, and each having other partners during this time: But as a result of other conduct by the spouses that negated an intent to permanently sever the marriage, courts have held that a later separation date applies.
The moral in this area of California marital dissolution law is if you are going to separate make a complete and final separation, and stick to it if you can and want to. This is a lot easier said than done for some. If you are not going to stick to a complete and final break, then a post marital agreement or a separation agreement may be the proper solution while you and your spouse determine what the future holds.