Property acquired by either spouse during marriage but after separation is ordinarily the acquiring spouse’s separate property. If you have property that you believe is your separate property, it is important to make sure that the court will also view your current status as separated. If the court does not consider the you separated, the property is considered community property and will be divided equally.
Separation occurs when either or both do not intend to resume the marriage and his/her actions reflect that intent. An evaluation of each party’s living situation can be important in determining whether “separation” has actually taken place. In the seminal Baragry case, the court held that the date of separation was found not to be the date a husband moved out and began living with his girlfriend, but rather 4 years later when he finally petitioned for dissolution. The facts the court looked to included that he (1) frequently ate dinner at the family home, (2) maintained his mailing address there, (3) took his wife to social events and his family on vacations and to sporting events, (4) continued to file joint income tax returns with his wife, and (5) regularly brought his laundry home for her to wash and iron. 73 CA3d at 448.
On the other hand, simply filing a petition for dissolution does not necessarily compel a finding that spouses who live in separate residences are separated under when the legal action is not pursued.
When analyzing the spousal conduct, the courts look to their “private conduct” rather than the perception of that conduct by friends and family to find evidence of a final and complete break in their marital relationship.
Sometimes spouses separate and then reconcile may have more than one period during their marriage for which the property acquired is separate property according to the law. True periods of separation must be carefully distinguished by evidenced of “a complete and final break in the marital relationship” followed by actual reconciliation, from periods during which the parties simply have maintained separate residences for other reasons. The court of appeal held that the standard of proof for the date-of-separation issue is preponderance of the evidence.
The true date of separation is very important in order to determine the characterization of the property. It is important to consult a knowledgeable family law attorney to help you during this process. Bethanie L. Fanti knows the rules and can advise you on how to get the best possible outcome. Call today for a free consultation. (714) 505-3108.