It’s over. Or is it? The date of separation quandary

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To paraphrase "Hamlet," "Separated, or not separated -- that is the question" The date of separation is legally the date of the end of the marriage. But what marks a specific date as "the date" of separation? In most cases, the parties easily answer the question, and there is general agreement as to the date of the end of the marriage. In other cases, the answers are murkier and often disputed.

Let's consider this hypothetical: The parties were married in June 2006 and have two daughters. Husband works for the county government and receives full benefits from his employer, including retirement and health insurance. Wife also works full-time but receives no benefits from her employer. In approximately 2014, the relationship began to sour, and the parties started to quarrel more often. Wife filed for dissolution in 2020, alleging that the marriage ended in 2019. Husband filed a response to the dissolution petition alleging that the marriage ended in 2015.

At trial, Husband contended that in late 2015, he moved out of the residence and began living with his co-worker, renting a spare bedroom. He also states that he has been dating his current girlfriend since 2017. Evidence of text messages and photographs of Husband and his girlfriend together was admitted into evidence to support his position. Husband also stated he did not receive any mail at the family residence and changed his address on his driver's license.

Wife contends that Husband maintained continuous and frequent contact with both her and their daughters. He ate family meals with all of them numerous times a week at the family residence and stayed the night occasionally in the family residence. Husband and Wife continued to attend the children's extra-curricular activities, social functions and church together and always sat next to each other during these events. Wife contends that they traveled together for their children's club soccer tournaments during the years in dispute, but Husband claims he slept either in a separate bed or a different hotel room. Wife had admitted into evidence of text messages between the parties of an intimate nature and family holiday cards and photographs taken after Husband's alleged date of separation.

Both parties agreed that after the date of separation, they had some intimate relations but not many. They also both admitted to attending couples therapy until just before the filing of the dissolution petition. Wife testified she started using an online dating application in 2018 to meet new people and had been on about a dozen dates since joining. Both admit that they have continued to file joint tax returns based on the advice of their accountant, and Husband paid most of the family expenses.

So what is the date of separation of the parties?

Complete and Final Break

California Family Code Section 70(a) states the "'Date of separation' means the date that a complete and final break in the marital relationship has occurred." Section 70(a) continues that evidence of separation requires "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." (Emphasis added.)

Family Code Section 760 provides "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." The date of separation is relevant because Family Code Section 771(a) states that "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 spouses are the separate property of the spouse."

Obviously, in cases in which the date of separation is relatively close to the date of filing of the dissolution petition, the effects of Section 771 may be negligible. However, in cases where there is a dispute about the date of separation for a period of years, the impact on the community and personal separate property division, pension/retirement contributions, reimbursements, child custody, and visitation issues, and duration of spousal support, along with other issues, can be significant.

No particular facts are per se determinative. The ultimate test is the parties' subjective intent, and all evidence is to be objectively considered by the court. See In re Marriage of Hardin, 38 Cal. App. 4th 448, 452 (1995). In Makeig v. United Security Bank & Trust Co., 112 Cal. App. 138 (1931), the court held living separate and apart is a "condition where the spouses have come to a parting of the ways and have no present intention of resuming the marital relations and taking up life together under the same roof." The question is whether the parties' "conduct evidences a complete and final break in the marital relationship." In re Marriage of Baragry, 73 Cal. App. 3d 444, 448 (1977). Regardless of the parties' subjective intentions and the objective evidence relating thereto, the date of separation depends on whether society at large would consider the parties separated. Id.; see also In re Marriage of von der Nuell, 23 Cal. App. 4th 730, 736 (1994); In re Marriage of Manfer, 144 Cal. App. 4th 925 (2006).

In In re Marriage of Umphrey, 218 Cal. App. 3d 647, 657 (1990), the parties had a settlement agreement that fixed the separation date. The wife later contested the date of separation in the settlement agreement after discovering that the settlement agreement resulted in an unfair division of community property assets. The court stated, "[a]s 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, separation dates can often be 'guesstimates' or approximations selected at random or without careful consideration."

In Makeig, the parties told only a few of the husband's friends they had married, resided in the same home for just six weeks, and maintained separate residences for 14 years until the husband's death. Nevertheless, the court concluded they had never separated because there was no evidence they considered dissolving the marriage.

In Baragry, the court dryly observed that while the husband slept with his girlfriend, he "maintained the facade of a marital relationship, but he now claims to have been legally separated from his wife." The court aptly noted: "[a]t bench, husband was presumably enjoying a captain's paradise, savoring the best of two worlds, and capturing the benefits of both. Wife was furnishing all the normal wifely contributions to a marriage that husband was willing to accept and most of the services normally furnished in a 20-year-old marriage. Husband was reaping the advantages of those services and may be presumed to owe part of his professional success during that four-year period to wife's social and domestic efforts on his behalf. One who enjoys the benefit of a polygamous lifestyle must be prepared to accept its accompanying financial burdens."

As evidenced by the case law, the fixing of the date of separation is based on the conveyed subjective intent of one party to the other party and the objective manifestation of that intent to society at large.

Standard of Proof

The date of separation is a factual issue to be determined by a preponderance of the evidence. In re Marriage of Peters, 52 Cal. App. 4th 1487, 1493-94 (1997). In Peters, the wife wanted the court to apply a higher standard of proof to the date of separation issue, arguing that significant property interests were at issue. Thus, a higher standard should be applied. The court held that "when we compare this risk of the loss of an economic interest with the interests at stake in cases applying the 'clear and convincing' standard, it falls short. All involve interests more substantial than the mere loss of money. Nor does proving the intent to separate encounter the difficulties which have led courts to impose higher standards of certainty." See also Manfer, 144 Cal. App. 4th at 930.

Why is the date of separation important?

In most cases, the date of separation will not be a contested issue. However, as the disparity between dates of separation grows longer, complicated issues come into sharper focus. As provided in Family Code Section 721(b), "spouses are subject to the general rules governing fiduciary relationships that control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other. This confidential relationship is a fiduciary relationship subject to the same rights and duties of nonmarital business partners."

In In re Marriage of Feldman, 153 Cal. App. 4th 1470, 1476-77 (2007), the court stated that "the Family Code requires the service of a preliminary and final declaration of disclosure '[i]n order to provide full and accurate disclosure of all assets and liabilities in which one or both parties may have an interest....' (Section 2103.) Specifically, 'the preliminary declaration of disclosure shall set forth with sufficient particularity,' to the extent that 'a person of reasonable and ordinary intelligence can ascertain [them],' '[t]he identity of all assets in which the declarant has or may have an interest and all liabilities for which the declarant is or may be liable, regardless of the characterization of the asset or liability as community, quasi-community, or separate.' (Section 2104 (c)(1).) It also shall include '[t]he declarant's percentage of ownership in each asset and percentage of obligation for each liability where property is not solely owned by one or both of the parties.' (Section 2104(c)(2).)."

Family Code Section 1101 creates a right of action and specific remedies for the breach of fiduciary duty between spouses. Section 1101(a) gives each spouse "a claim against the other spouse for any breach of the fiduciary duty that results in impairment to the claimant spouse's present undivided one-half interest in the community estate." The statutory remedies for a breach of fiduciary duty "shall include a mandatory award of 50 percent of any asset undisclosed or transferred in breach of the fiduciary duty plus attorney's fees and court costs." Section 1101(g). If the nondisclosure or wrongful disposition of community property "falls within the ambit of Civil Code section 3294 (punitive damages upon clear and convincing evidence of oppression, fraud or malice), the court must award to the injured spouse the entire value of the asset." Section 1101(h).

The ability to maintain the fiduciary duty between spouses and the ability to demonstrate breaches of the fiduciary duty becomes more complex as time passes and memories fade. In In re Marriage of Prentis-Margulis & Margulis, 198 Cal. App. 4th 1252, 1273 (2009), the parties had been married for 33 years and separated for 12 years before the dissolution proceedings began. At trial, the parties contested the community property assets of the marital estate. Namely, a dispute arose about bank accounts that existed at the time of separation and funds earned post-separation, which had been commingled into community property accounts. The court noted that "[Wife] had no personal knowledge of the extent of the community assets at separation; nor had she personal knowledge of how [Husband] handled those assets in the ensuing years." Her only evidence was documents she obtained nine years before the trial about the community assets.

The court noted that "requiring a managing spouse to account for the disposition of missing assets does not entail a 'detailed' accounting. The trial court undoubtedly will take into account the length of the separation, and the attendant difficulties of proof in determining whether the account made is satisfactory. Nevertheless, it remains clear that the duty to account for the disposition of community property exists from separation to final distribution of assets. (citations omitted) The duty to account does not dissipate over the course of an unusually long separation."

In a cautionary tale for both date of separation and breach of fiduciary duty, look no further than In re Marriage of Rossi, 90 Cal. App. 4th 34 (2001). In Rossi, Wife, who had previously been part of a lottery pool, learned that the lottery pool had won the lottery jackpot. Wife may have left the lottery pool a few weeks before the winning ticket was purchased, but the lottery pool still awarded her a share. The jackpot prize was $6,680,000, and the Wife's share was $1,336,000.

In early January 1997, Wife filed a petition for dissolution of marriage in the Los Angeles County Superior Court. She never told Husband about the lottery jackpot and used her mother's address to receive checks and other information from the California Lottery. Husband was served with the dissolution petition in January 1997. Wife did not reveal the lottery winnings in any document filed with the court or provided to Husband or in their marital settlement agreement. Judgment of dissolution was entered on April 7, 1997. After learning of the lottery winnings, in July 1999, "Husband filed a motion to set aside the dissolution of marriage based on fraud, breach of fiduciary duty and failure to disclose; for adjudication of the lottery winnings as an omitted asset; and sought the award of 100 percent of the lottery winnings pursuant to Family Code section 1101, subdivision (h)."

The trial court's decision, upheld on review, found that Wife "intentionally failed to disclose her lottery winnings in the marital settlement agreement, the judgment, and her declaration of disclosure. It found that [Wife] breached her fiduciary duties under sections 721, 1100, 2100, and 2101 by fraudulently failing to disclose the lottery winnings and [in the marital settlement agreement.] The court specifically found that [Wife's] failure to disclose the lottery winnings constituted fraud, oppression, and malice within the meaning of Civil Code section 3294 and section 1101, subdivision (h). The trial court awarded [Husband] 100 percent of the lottery winnings pursuant to ... and section 1101, subdivisions (g) and (h)."

Is there a bright-line rule?

The cases discussed above established that parties may live apart but still not be legally separated. In In re Marriage of Norviel, 102 Cal. App. 4th 1152 (2002), the court was faced with the question of regarding date of separation when both parties express a desire (or demonstrate a willingness) to end the marriage (i.e., separate) but continue to share a residence. In Norviel, "both parties worked long hours and traveled frequently. After the birth of their daughter in 1994, the Wife stopped sleeping with her Husband regularly and instead usually slept in the daughter's room. As Husband described it, he and Wife were 'roommates.'" Husband ultimately moved out in 1998. A dispute arose regarding their date of separation, with the Wife claiming the later date of 1998 and the Husband claiming 1994.

The Norviel court held that "living apart physically is an indispensable threshold requirement to separation, whether or not it is sufficient, by itself, to establish separation."

The court stated, "we find support for that conclusion first in the statutory language itself. Earnings are separate property only when spouses are 'living separate and apart.' (Fam. Code, Section 771, subd (a).) By at least one creditable definition, 'living separate and apart' means 'residing in different places and having no intention of resuming marital relations.' (Black's Law Dict. (7th ed.1999) p. 945, italics added.)."

Husband argued that requiring separate dwellings as a predicate to separation "could preclude California's less affluent couples from establishing a date of separation and ending the accumulation of community property." The court was not persuaded. However, the court did state, "our conclusion does not necessarily rule out the possibility of some spouses living apart physically while still occupying the same dwelling. In such cases, however, the evidence would need to demonstrate unambiguous, objectively ascertainable conduct amounting to a physical separation under the same roof.

In In re Marriage of Davis, 61 Cal. 4th 846, 851 (2015), the issue of "separate and apart" was before the California Supreme Court. In Davis, the husband contended "that spouses cannot be 'living separate and apart' for purposes of section 771(a) when they continue to share a residence ... Wife contends that no particular fact, including place of residence, is determinative. Instead, wife argues that a court should consider the totality of the circumstances and decide the date of separation based on conduct by either or both of the spouses evidencing a complete and final intent to part ways with no plan of resuming the marital relationship, even if at that time they are still living in the same residence." Both claimed that each other's approach was unworkable as a legal doctrine. Husband sought a "bright-line rule in order to provide clear guidance to judges and a measure of predictability to attorneys and litigants."

The court concluded "that living in separate residences is an indispensable threshold requirement for a finding that spouses are 'living separate and apart' for purposes of section 771(a). This interpretation of the statutory language aligns with the common understanding of the words, the statutory history of the provision, and legitimate public policy concerns."

Issue resolved, right? Norviel and Davis established a bright-line rule ending all disputes on this topic -- the parties must live "separate and apart" in different physical residences to satisfy this requirement and not merely in separate bedrooms in the same home. However, in Norviel, when addressing this bright-line issue, the court stated, "to the extent Husband is making a policy argument, it is more appropriately directed to the Legislature."

The Legislature accepted the Norviel court's request and revised California Family Code Section 70(c), to its current language: "(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." Issue resolved.

Conclusion

So is there a bright-line rule about the date of separation? The answer is "No" as Family Code Section 70(c), nullified the bright line approach. Family Code Section 70(b) states, "In determining the date of separation, the court shall take into consideration all relevant evidence." Decisions about dates of separation are based on the parties' subjective and objective conduct, and each situation is based on the facts and evidence presented.

Turning back to your hypothetical, so what is the date of separation? Well, it depends.... 