When a spouse files for divorce the first issue to tackle is often the parties’ date of separation. One might think that the date of separation is when the petition was filed in the divorce, or when one spouse moved out. However, the date of separation is often fact driven and can be a complicated issue to resolve.
Pursuant to Family Code section 70 the “date of separation” means that a complete and final break in the marital relationship has occurred, such that (1) the spouse has expressed to the other spouse his or her intent to end the marriage, and (2) the conduct of the spouse is consistent with his or her intent to end the marriage. The court has stated that there must be problems “so impaired” in the marriage that there is no reasonable possibility of “eliminating, correcting, or resolving these problems.” (In re Marriage of Hardin (1995) 38 Cal.App.4th 448.) Ultimately, the court will look towards the parties’ subjective intent to end the marriage, and the parties’ outward persona should not be considered. Continue reading