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Separation Date: When Is It Really Over?

Guiding You Through Difficult Times

Sometimes it is difficult to grasp when it is really over.  That’s because much can happen between the litigants before their divorce has been finalized, and a judgment has been entered.

It is not uncommon for couples, who are in the process of a divorce, to have family or business related dealings between one another.  This could be due to the fact they are still raising young children, or they might have mutual friends that create comfortable or uncomfortable exchanges.  Family events may lead to not only direct confrontations, but friendly gestures might be exchanged which can lead to cordial relations.

Amicable exchanges between the litigants may have significant consequences in legally determining the date the marital relationship actually ended.  In California, Family Code § 771 covers these concerns.

When married people are separated, all “earnings and accumulations” of the parties’ living separate and apart is the respective party’s living separate property.  What this code section does is effectively terminate the acquisition of community property.  In a divorce, determining the precise date of separation may prove who gets substantial community or separate dollars.

Over thirty (30) years worth of court decisions have attempted to define what constitutes a date of separation and termination of a marital relationship, and what does not.  In many cases, the courts have determined that even the filing of the petition for dissolution of marriage is not necessarily conclusive proof of the date of separation.

It is important to understand that when the two parties do not have a clear understanding that their marital relationship is over, outward overt acts can become relevant or determinative of the date of separation.  However, the case In re Marriage of Manfer (2006) 144 Cal.App.4th 925 determined that 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…”  Parties to a divorce can have cordial relations, however, they should do something concurrent to memorialize their understanding that their relationship is actually over.

So the important point to be learned from all this is:  It is really over when the parties prove that it’s over.  Any misunderstanding to this point could become expensive to both sides.

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