SEPARATION in DIVORCE CASES

DONALD F. CONVISER, a Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Family Law and Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, brings you another informative and educational blog, responding to questions posed to him by members of the public in areas of Family Law and Divorce.

I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question, as well as information which may be educational about the subject matter of the question:

QUESTION: Is it necessary to be legally or officially separated before you get a divorce? We just decided to get a divorce. We have been married and living together for 2 and a half years. We never decided to separate legally, though my husband has been staying with friends lately. Do we need to be legally separated before we can get a divorce?

ANSWER: You don't need to live separately to get a divorce. All you need to qualify for a divorce is to have irreconcilable differences that have led to an irremediable breakdown of the marriage. Just file a divorce case, have the papers served by somebody over 18 other than you, and proceed.

MORE ABOUT SEPARATION:

In some cases, "separation" becomes a significant factor. In "long term" marriages (usually marriages of 10 or more years in duration before separation), the Court generally awards Spousal Support until the death or remarriage of the payee [Family Code Section 4336], whereas in "short term" marriages, the Court generally awards Spousal Support for a period equivalent to 1/2 the duration of the marriage to the date of separation. Because the earnings and accumulations of a spouse while living separate and apart from the other spouse are the separate property of the spouse [Family Code Section 771(a)], the date of separation can be of considerable consequence to the parties' property rights, and may affect property division.

Although Family Code Section 771(a) does not define "date of separation" or specify a rule for determining it, and although there is no definitive authority setting forth a single standard to be employed or a comprehensive list of factors to be considered, a number of courts have attempted to enunciate guidelines.

MAKEIG v. UNITED SECURITY BANK & TRUST COMPANY (1931) 112 Cal.App.138, 143 refers to separation as that "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."

Marriage of BARAGRY (1977) 73 Cal.App.3d 444, 448 inquires "whether the parties' conduct evidences a complete and final break in the marital relationship."

Marriage of VON DER NEULL (1994) 23 Cal.App.4th 730, 736, construed BARAGRY to hold commencement of the separation period "requires not only a parting of the ways with no present intention of resuming martial relations, but also, more importantly, conduct evidencing a complete and final break in the marital relationship."

Marriage of NORVIEL (2002) 102 Cal.App.4th 1152, 1159, 1162 reiterates BARAGRY's formula, but adds, "By at least one creditable definition, 'living separate and apart' means 'residing in different places and having no intention of resuming marital relations.'", and concludes, "Spouses must be 'living separate and apart' in order to separate. Many attorneys take issue with NORVIEL, and most trial courts do not require the additional requirement addressed in NORVIEL.

Marriage of MANFER (2006) 144 Cal.App.4th 925, 930, 934 rejected the trial court's requirement of a public revelation of the parties' separation in a case where the parties concealed from their friends and family their intention to divorce, and cites as useful authority the standard articulated in Marriage of HARDIN (1995) 38 Cal.App.4th 448, 451-453: "The date of separation occurs when either of the parties does not intend to resume the marriage and his or her actions bespeak the finality of the marital relationship. There must be problems that have so impaired the marriage relationship that the legitimate objects of matrimony have been destroyed and there is no reasonable possibility of eliminating, correcting or resolving these problems." "All factors bearing on either party's intentions 'to return or not to return to the other spouse' are to be considered. " No particular facts are per se determinative. The ultimate test is the parties' subjective intent and all evidence relating to it is to be objectively considered by the court." Stated differently, "The 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 that period the rift in the parties' relationship was final."

If there is a controversy as to date of separation in an action for dissolution of marriage and it affects whether or not the marriage was of "long duration" or if one party had significant earnings and/or accumulations during a period of time in which separation of the parties is questionable, you would be wise to seek the services of a competent Certified Family Law Specialist.