You Can't Go Home Again

By: Ovvie Miller

Periodical: Los Angeles Lawyer

Date: February 1997

California law - specifically Family Code Section 771 - provides that a spouse's earnings and accumulations received while living separate and apart from the other spouse are characterized as separate property.  Thus, in a marital dissolution proceeding, the court's acceptance of one date of separation in lieu of another is a decision that may have considerable economic significance.  Clients - and practitioners - may be surprised by the extent and nature of the evidence required to show a permanent separation.

The judicial search for a marital separation date is fact-driven.  Courts resolving date-of-separation disputes consider a range of factors and behavior.  A notable case in point is In re Marriage of Baragry,1 in which the California Second District Court of Appeal reviewed the trial court's determination that the parties separated on the date the husband moved out of the family home in August 1971.  The wife had contended that the separation date was October 1975, the date the husband filed his petition for dissolution of marriage.

The Baragry trial court made its decision after reviewing the following facts:

	Husband moved out of the family home after a quarrel with Wife.  He stayed for a time on his boat and later shared an apartment with his girlfriend.  Except for Christmas Eve 1971, Husband never again slept in the family home and the parties never again had sexual relations.
	Husband did maintain frequent and continuous contact with his family.  He ate dinner at the family home at least three times a week.  He took Wife and their two daughters to Yosemite and San Francisco in 1971 and 1972. In 1972 and 1973, he took his family to all local university basketball games.  In 1973, he and Wife went to Sun Valley for a week without the children.  He frequently attended social occasions with Wife.
	He sent Wife many Christmas, birthday, and anniversary cards between 1971 and 1975.  In 1974, he filed an enrollment card at their daughter's private school stating that she lived at home with both parents.  Husband and Wife continued to file joint income tax returns, and Husband maintained his voting registration at the home address.  He also maintained his mailing address at the home.
	Husband paid all the household bills and supported his family.  He even brought his laundry home to Wife, who washed and ironed it twice a month.
	Wife desired a reconciliation and continued to hope that Husband would return.  Husband never told Wife that he was never coming back.  He claimed that he took Wife on outings to preserve social appearances and to keep in touch with his children, who would otherwise not come to see him.  He testified that his "solid Midwestern upbringing" had delayed the filing of the divorce.

The court of appeal reversed the finding of the early date of separation.  The appellate court explained that simply living in separate residences was not enough to constitute a separation.2  Nor was the absence of a sexual relationship or the fact of the husband's cohabitation with his girlfriend a controlling factor.  The court was troubled by the "captain's paradise" that the husband had created and held that such behavior should not be rewarded: "During the period that spouses preserve the appearance of marriage, they both reap its benefits, and their earnings remain community property."3

In the nearly 20 years that have elapsed since Baragry, the appellate courts have been consistent in demanding clear proof of a permanent separation and in preventing people from taking advantage of their ambiguous living arrangements.

In In re Marriage of Umphrey,4 the issue of date of separation arose in the context of a motion to vacate a marital settlement agreement and judgment of dissolution.  The date of separation had an impact on the characterization of an income-producing lease.  The marital settlement agreement listed the date of separation as "September 1979," while the lease had been executed on September 17, 1979.  The trial court believed that it lacked jurisdiction to determine a separation date other than the date contained in the marital settlement agreement.

The First District Court of Appeal held that the trial court was required to consider all relevant evidence regarding the actual separation date.  The court further held that recitations in the dissolution and marital settlement agreement were not conclusive.5  The date of separation had never been adjudicated, and once the agreement was incorporated into the judgment, it became of historical interest only.6  In a move filled with procedural significance, the wife's motion was not brought under Code of Civil Procedure Section 473 (the six-month limitations period had expired) but instead addressed the equity power of the court.  Consequently, the trial court should have viewed the actual conduct of the parties rather than the terms of the writing to determine their true intent regarding separation.7

The relevant facts in Umphrey concerning actual conduct were as follows:

	Husband and Wife were married in 1950.  In November 1978, Wife wrote Husband a note telling him that she had decided to end their relationship.  At her request, Husband moved out of the residence.  Wife filed a petition to dissolve the marriage that same month but dismissed it shortly thereafter at Husband's request.
	Wife claimed that when she dismissed the proceeding, she considered the marriage to have resumed intact.  She believed that Husband's extensive absences from the home were due to business commitments.  Indeed, although he maintained temporary living quarters "from time to time and place to place," his belongings remained at the family home.  Husband, however, maintained that he never resided or reconciled with Wife after November 1978.
	In June 1979, Wife moved with the parties' son to another city and wrote to Husband asking him to retrieve his personal items.  In 1986, Wife wrote to Husband's lawyer saying that she "might as well sign [the marital settlement agreement] rather than go on with nothing at all as I have in the past eight years."8
	The agreement set forth a separation date of "September 1979."  Husband stated that he and Wife mutually agreed on the date as a "ballpark" estimate and saw no need to review old records to determine the precise date.  Wife stated that she never discussed a separation date with Husband and, when she saw the September 1979 date in the draft agreement, she accepted it because she thought that Husband had the legal right to choose the date.  (Wife had not been represented during negotiations and preparation of the marital settlement agreement).
	The agreement was approved by the court in an uncontested proceeding and incorporated into the judgment of dissolution.  In August 1987, Wife moved to set aside the agreement and judgment insofar as it adjudicated the property rights of the parties.9

The court of appeal held that the word "separation," as used in former Civil Code Section 5118 (now Family Code Section 771), refers to the time when the spouses have come to a parting of the ways, with no intention of resuming their marital relationship, their conduct serving as evidence of a complete and final breakup.  In determining the precise time of separation, the trial court is "duty bound to consider all the relevant evidence."10  While statements in the pleadings and the settlement agreement may be considered, they are not conclusive.11

The court, in remanding the matter to the trial court to determine the date of separation and its consequential impact on characterizing an omitted asset, noted that its broader view of the subject of marital separation comports with the realities of married life.  Many couples may live apart for protracted periods of time before deciding to dissolve the legal relationship.  In such cases, the separation dates may often be only "guesstimates or approximations selected at random or without careful consideration.12

The Second District Court of Appeal revisited the subject of separation in 1994 with In re Marriage of von der Nuell,13 a case that contained the following sequence of events:

	On November 1, 1987, Husband left the family home at Wife's request because she believed (correctly) that he was spending time with another woman.  Husband complied, but on several occasions he asked Wife for an agreement to return home.  Wife refused and told him to find a residence other than his girlfriend's before returning home.  He did find a separate residence but never returned to the family home.
	In July 1989, Husband filed a petition for dissolution that was never served on Wife.  Meanwhile, Wife believed that the marriage could be salvaged.  She sought marriage counseling, although Husband refused to join her.
	Between early 1988 and the spring of 1991, the parties discussed and attempted reconciliation and continued having sexual relations.  During that time the parties maintained joint checking accounts and credit cards, filed joint tax returns, and took joint title to an automobile.  Husband frequently visited Wife at home, took her on vacations, went out socially with her, and sent cards and gifts on special occasions.
	In June 1991, Husband elected to take an early retirement and ceased paying spousal support.  Wife then filed for dissolution of marriage.

The trial court found that the date of separation was November 1, 1987, the day the husband left the family home at his wife's request.  The court of appeal reversed, stating that a legal separation requires a parting of the ways with no present intention of resuming marital relations.  In addition, because tensions between spouses may be followed by long periods of reconciliation, and the intentions of parties may change from day to day, the parties' conduct must evidence "a complete and final break" in the marital relationship.14

Given the ongoing economic, emotional, sexual, and social ties between the parties as well as their attempts at reconciliation, the parties' intentions on November 1, 1987, were not controlling.  There had not been the requisite complete and final break in the marriage.15

The Fourth District Court of Appeal in In re Marriage of Hardin16 rejected yet another claim that a separation had occurred when a peripatetic husband moved out of the family home.  The trial court had considered the following evidence:

	Husband and Wife were married in 1961.  Husband walked out of the family residence on June 28, 1969, after the last of several arguments.  He never moved back, and he never again slept at the house.  The parties dated other people and did not attend social or family events together after Husband's departure.
	Wife filed three different petitions for dissolution, always specifying June 28, 1969, as the date of separation.  The marital status was dissolved 11 years later, in 1983. In 1991, Husband and Wife finally agreed to resolve the remaining property and support issues and requested that the court determine the date of separation.
	Wife claimed a new date of separation - 1983, when Husband, wishing to remarry, moved forward with the dissolution.  Wife contended that during the period before the marriage was officially dissolved, the parties had seen each other regularly, maintained the same economic relationship that they had before Husband left the home, and acquired real property together.  Husband continued to receive mail at Wife's home address, and in various written forms he indicated that he resided at her home.  Wife remained a corporate officer in the family business and signed, at Husband's request, all documents presented to her in connection with that business.  Bank documents executed in 1982 stated that the parties were married, not separated, and that all of their property was community.  Between 1969 to 1983, Wife continued to appear at various business functions, including picnics and the annual Christmas party though her claim that she was a hostess at these events was disputed.
	Husband acknowledged that he had not made a decision to end the marriage until at least early 1982. Indeed, it was only in January 1983 that Husband first disclosed to anyone, including Wife, that he intended to end the marriage by divorce. In the 11 years of separation, Husband sent Wife many cards that expressed his love, including missives signed by "your loving husband," with the phrases "I'll straighten out some day" and "you deserve lots of sympathy for putting up with me."

This evidence convinced the trial court that the husband had "not made up his mind regarding a divorce until 1982 or 1983."17  Nevertheless, the court held June 28, 1969, to be the date of separation based on its own standard:  "Would society at large deem the couple to be separated based upon the facts and...evidence presented?"18  The court of appeal reversed and remanded with directions that the trial court consider all the evidence presented, including subjective evidence of the parties' intentions:

[T]he ultimate question to be decided in determining the date of separation is whether either or both of the parties perceived the rift in their relationship as final.  The best evidence of this is their words and actions.  The husband's and the wife's subjective intents are to be objectively determined from all of the evidence reflecting the parties' words and actions during the disputed time in order to ascertain when during the period the rift in the parties' relationship was final.19

So in the absence of a statutory definition of "separation" in California law, the appellate courts have concluded case by case that the date of separation occurs when either party does not intend to resume the marital relationship and that party's conduct unequivocally demonstrates a thorough breakdown of the marriage relationship.20

All evidence of a party's subjective intent is relevant and must be considered by the trial court21 in its determination of the ultimate issue—whether either or both parties perceive the marital rift as final.  Thus the inquiry regarding subjective intent is driven by an examination of objective factors—the parties' words and actions.  No particular facts are determinative per se.22

The cases clearly instruct practitioners and clients that a number of factors are not conclusive as to the date of separation:

	Establishing a separate residence.23
	The absence of a sexual relationship.24
	Filing a dissolution proceeding.25
	Alleging a specific date of separation in a marital settlement agreement or dissolution petition.26
	Dating or cohabiting with another party.27

The more a spouse enjoys the benefits of a marital lifestyle, the less probable it is that the spouse's claim of a marital separation will be honored.  So clients should be advised that merely sleeping on the couch will not be sufficient to establish a date of separation where the appearance of an intact marriage has otherwise been preserved.  (See "Separation Don'ts," also by Ovvie Miller.)  In short, if the party claiming an early date of separation has kept some ties to the marriage, the court is not likely to cut those ties in determining the date of separation.

Ovvie Miller, a partner in the Beverly Hills firm of Rosenfeld, Meyer & Susman, specializes in family law and handles occasional civil litigation.

Our Litigation Department specializes in civil litigation at all levels of the judiciary, and has wide-ranging experience in litigating business, commercial and entertainment-industry related matters. We have extensive experience in accounting and partnership, antitrust, and securities and corporate litigation. Additional areas of emphasis include copyright and intellectual property, real estate and products liability litigation as well as in the appellate practice.

Rosenfeld, Meyer & Susman was founded in 1957.  The Firm’s areas of expertise include: Labor and Employment Law, Litigation, Corporate, Entertainment, Trusts and Estates, Taxation, Family Law, Insurance Coverage and Defense, Real Estate and Employee Benefits.

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