Legal Question in Family Law in California

Prior to commencing a dissolution proceeding, a couple makes the decision to separate. Under the California Family Code, �separation� requires more than marital troubles. The parties� legal date of separation occurs when the parties have come to parting of the ways with no present intent to resume their marriage and their conduct evidences a complete and final break in the marital relationship.

The date of separation is important to divorce proceedings because California Family Code section 771(a) states that earnings and accumulations while married persons are living separate and apart must be characterized as separate property. This means that following separation, each spouse�s income and earnings are their own property not to be shared 50/50 as community property.

The parties� date of separation occurs when both a subjective and objective test have been met. First, either of the divorcing parties must have had the the subjective intent to end of the marriage, i.e., when one or both determined that reconciliation was no longer possible. Second, there must be objective evidence of conduct furthering that intent to end the marriage. In evaluating this factor, California courts will evaluate whether spouse acted or conducted him or herself in such a way that is consistent with the end of the relationship.

BARRY BESSER

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