A Couple’s Date of Separation Occurs When Either of the Parties Does Not Intend to Resume the Marriage and His or Her Actions Signal the Finality of the Marital Relationship

In divorce cases, the date of separation may be a crucial fact affecting spouses’ rights to property and support. “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.”  In this 1969 Orange County divorce, husband left and never returned following a heated argument. However, the spouses kept their finances intertwined and continued to communicate and see each other regularly. In 1983, husband finally decided to seek a divorce so that the spouses could move on.

The Orange County divorce court sided with husband’s Orange County divorce lawyer and held that the date of separation occurred when husband moved out in 1969.  In reaching this conclusion, the divorce court relied on the following facts: (1) the date husband moved out; (2) that husband never moved back in; (3) that husband left after a heated argument; (4) the spouses previously had numerous other arguments where husband did not leave; (5) the spouses dated other people; (6) the spouses did not attend business, social, or family events together; and (7) wife filed divorce papers three different times, all of which specified 1969 as the date of separation.

However, the Court of Appeal in Orange County determined that the divorce court failed to consider the spouses’ subjective intent and ruled in favor of wife’s Orange County divorce attorney.  At the divorce trial, the husband testified that he (1) did not decide to end the marriage until 1982; (2) never told anyone that he wanted a divorce until 1983, and (3) wrote cards to wife from 1969 to 1983 where husband wrote: “Love,” “All my love,” “Your loving husband,” “I’ll straighten out some day,” and “You deserve lots of sympathy for putting up with me.”

The Court of Appeal in Orange County further found that the divorce court failed to consider the spouses’ unchanged economic relationship, including their joint property purchases. Husband also continued to receive mail at the apartment he left and filled out forms indicating that he still lived there. Wife appeared at husband’s various business functions and sent Christmas cards to husband’s employees.

In the end, the Court of Appeal in Orange County decided, “[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.”

In re Marriage of Hardin (1995) 38 Cal. App. 4th 448