Will an Attempt at Reconciliation Change the Character of Property?

1210666_band_aid.jpgIf you are a fan of Who’s the Boss? star Tony Danza, you may recall that in 2006 he separated from his wife, Tracy. Four and a half years later, Tony Danza has filed for divorce according to People.com.

As a San Diego divorce lawyer, I have had clients in similar situations; specifically, clients who have waited some length of time after separating to file for divorce. Although I do not know the reason Tony Danza personally waited to file for divorce, sometimes parties wait to file for divorce because they are attempting reconciliation. In my work as a San Diego family law attorney, I have been asked how an attempt at reconciliation effects how property is divided, and specifically how an attempt at reconciliation effects how a spouse’s earnings will be characterized by a court, that is as separate property or community property.

Generally, except as otherwise provided by statue, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property. Family Code section 760. One such statutory exception is that earnings and accumulations of a spouse while living separate and apart from the other spouse are separate property. Family Code section 771.

Accordingly, once parties separate, their earnings after the date of separation will generally be characterized as separate property. An “attempt” at reconciliation should have no effect because it is, by its nature, only an attempt, assuming the parties remain living separate and apart. However, as a practical matter, the spouse who stands to benefit from a later date of separation may argue, depending on the facts, that the parties not only attempted reconciliation, but that they actually reconciled. Therefore, an attempt at reconciliation may put date of separation, and thus the character of property, at issue.

It can benefit some individuals, depending on the facts of their case, to enter into a written agreement specifying that reconciliation is being attempted only and preserving the date of separation.