As explained by my associate, Robert Borsky, Esq.
A key issue is date of separation. Separation within the meaning of the Family Code §771 (a) requires more than simply an argument or rift in the spouse’s relationship. It is that date that occurs only when the parties have come to a parting of the ways with no present intent to resume their marriage and their conduct evidences a complete and final break in their marital relationship.
This date is proven by a preponderance of evidence. The court looks at a myriad of facts. The facts must be clear and convincing according to the Evidence Code §115. There is not only intent, but conduct. Intent is what you have clearly stated and you have done so with the filing of your Petition. However your conduct may be something else.
If at least one spouse entertains the subjective intent to end the marriage, and there is objective evidence of conduct furthering that intent; and that intent, it is communicated to the other party, then you have separated. However, where both of you want to separate, but there is no conduct evidencing that separation, i.e. you are still in the house, still eating meals together, still doing things together with the children, sexual relations, having friends over or going out together, all these are indicative of conduct that is not consistent with the decision to separate.
The intent is tested objectively. It is all evidence reflecting the parties’ words and actions during the disputed time and is examined objectively to determine when during the period the actual break in the marriage relationship was final. The most absurd issue is the act of communicating intent to finally terminate the marriage. It is not in and of itself conduct to support any separation. The court’s basic statement is “actions speak louder than words”. There must be non-verbal conduct consistent with the separation date. Therefore the court looks at evidences of economic, emotional, sexual and social ties. They look at joint checking accounts, credit cards, tax returns, joint acquisitions, joint vacations, exchange of gifts or cards, continuing financial contributions to the marital community in attempts at reconciliation including counseling.
The classic case is Marriage of Norviel wherein the spouses considered themselves separated for purposes of §771 (a) of the Family Code. However, they continued to reside together in the family home, even in separate bedrooms, but they utilized joint bank accounts, credit cards, conduct financial transactions together as husband and wife. They occasionally participated in family meals, outings and vacations. In one instance, the husband took the wife on a business trip and in one instance, they acknowledged a wedding anniversary with flowers and a card. This was sufficient to deny the date of separation and continue the marriage, making it only longer.
Therefore, you must make the decision, given the information above, as to when your date of separation shall be.
All ties financially and otherwise will mitigate toward any argument that the marriage was continuing.
