Happy New Year everyone!

I have been engaged in two very complex and ongoing settlement conferences in an effort to prevent the case from going to trial and incurring substantial legal fees and costs for my client.

One case will need to be “bifurcated” (a separate trial for one or more particular issue). In this case, it is ascertaining what the date of separation would be and if decided, the case will likely settle.

This is a long-term marriage of nearly 25 years and the difference on the date of separation is 7 years. The valuation of the assets and income accrued are critical to the issues of property division and spousal support.

Family Code (FC) Section 760 defines community property:

Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.

FC Section 770 defines separate property:

(a) Separate property of a married person includes all of the following:

(1) All property owned by the person before marriage.

(2) All property acquired by the person after marriage by gift, bequest, devise, or descent.

(3) The rents, issues, and profits of the property described in this section.

(b) A married person may, without the consent of the person’s spouse, convey the person’s separate property.

FC Section 771(a):

(a) The earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, after the date of separation of the spouses, are the separate property of the spouse.

FC Section 70 defines date of separation:

(a) “Date of separation” means the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following:

(1) The spouse has expressed to the other spouse his or her intent to end the marriage.

(2) The conduct of the spouse is consistent with his or her intent to end the marriage.

(b) In determining the date of separation, the court shall take into consideration all relevant evidence.

(c) It is the intent of the Legislature in enacting this section to abrogate the decisions in In re Marriage of Davis (2015) 61 Cal.4th 846 and In re Marriage of Norviel (2002) 102 Cal.App.4th 1152. (Ad Stats 2016, C114)

The objective test in determining date of separation is the unambiguous ascertainable conduct that he/she no longer wanted to stay married. Some factors that the trial court will review are whether husband/wife (h/w) are: (1) living away from each other, along with at least one spouse’s intent to dissolve the marriage; (2) residing in different places and having no intention of resuming marital relations; (3) these definitions contemplate both a physical separation of residence and accompanying intent to end the marital relationship.

The subjective test also scrutinizes the conduct in determining when the marriage has ended. While physical separation is a factor, it is not conclusive. FC 70 for a lack of a better word creates a finding of the “Aha moment” for the court. 

FC Section 70 “AHA MOMENT”

(a) “date of sep” means the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following:

  • the spouse has expressed to the other spouse his or her intent to end the marriage.
  • the conduct of the spouse is consistent with his or her intent to end the marriage.

(b) in determining the date of separation, the court shall take into consideration all relevant evidence.

(c) it is the intent of the legislature in enacting this section to abrogate the decisions of Irmo Davis (2015) 61 cal.4th 846 and Norviel (2002) 102 cal.app.4th 1152.

It requires not a piecemeal but a comprehensive picture to be relayed to the trial court by the trial attorney. For example, the Baragray court concluded that the fact that h/w lived in separate residences was not determinative of whether they were living separate and apart. The court stated, the question is whether the parties’ conduct evidences a complete and final break in the marital relationship. The court found no such conduct because the husband maintained continuous and frequent contact with his family even after moving from marital home.

In Marsden, the court found, including but not limited to, that the wife remained close to the marital home, intimate relationship continued, and both h/w sought the assistance of a marriage counselor. The trial court held that the evidence does not establish as a matter of law that the parties had come to a parting of the ways with no present intention of resuming marital relationship.

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, courts have construed that legal separation requires not only a parting of the ways with no present intention of resuming marital relations, but also conduct evidencing a complete and final break in the marital relationship.

If you guess that it is a case-by-case and intensively factually driven analysis is required, you are correct. Extensive discovery and key legal analysis along critical facts must be presented to the trial judge in a cohesive and detailed manner.

Hence, all settlement efforts prior to going to trial has always been my strategy. It is not my goal to put client’s personal and intricate details in the public arena, staggering legal costs that will be incurred, and more importantly, the emotional toll on the parties and the family.

Any questions, please feel email me at [email protected] or call my office at 310-601-7144.

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