THE date of separation is one of the most litigated issues in a divorce case. Its determination can have a significant economic consequence in the outcome of the case. The reason being, a spouse’s “earnings and accumulations” after separation are his or her separate property. A spouse’s “earnings and accumulations” while living separate and apart from the other spouse are his or her separate property as well pursuant to Family.Code. § 771(a)).
“Separation” requires more than a rift in the spouses’ relationship. The date of “separation ” 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 the marital relationship. In simple terms, it the first point in time when either party decides to finally end the marriage with no intent to return to their spouse. The burden of proof required to prove this is a preponderance of the evidence. A spouse must show that 1) the spouse entertains the subjective intent to end the marriage, and 2) there is objective evidence of that intent. A party’s intent may be evaluated in terms of the spouse’s words and conduct evidencing this intent and this should occur simultaneously.