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1995 National Legal Research Group, Inc.

CALIFORNIA: In re Marriage of Hardin, ___ Cal. App. 4th ___, 45 Cal. Rptr. 2d 308 (1995).

To identify the date of separation, the parties' subjective intents must be objectively determined from all of the evidence reflecting their words and actions during the disputed time period to ascertain when the rift in their relationship was final.

California uses the date of separation as the crucial date for determining the spouses' property interests: property acquired by a spouse after the date of separation is classified as that spouse's separate property, whereas property acquired before the date of separation is community property. The discussion in In re Marriage of Hardin may be of interest to lawyers in equitable distribution states that likewise use the date of separation as the cutoff date for marital property. The court endorsed a subjective test that depends upon an assessment of all relevant evidence rather than only one or two factors being considered dispositive.

After eight years of marriage, the husband moved out of their apartment, but an additional 14 years elapsed before the dissolution of their marriage. During the subsequent proceedings to divide their property, the trial court ruled that the separation occurred when the husband moved out. The appropriate standard, as the trial court framed it, was whether society at large would deem the couple to be separated.

The California Court of Appeal held that the standard applied by the trial court was incorrect. After noting the lack of any statutory definition for the date of separation and reviewing several California cases on the issue, the court decided that 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. No facts are determinative; the ultimate test is the parties' subjective intent, and all evidence relating to that intent is to be objectively considered by the trial court, the court declared. It provided this guidance:

The 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 . The husband's and the wife's subjective intents are to be objectively determined from all of the evidence reflecting the parties' words and actions during the disputed time in order to ascertain when during that period the rift in the parties' relationship was final.

45 Cal. Rptr. 2d at 311 (emphasis by court; footnote omitted).

Here, the court noted, the trial court identified the date of separation as the date when the husband moved out, relying on the fact that he never moved back in with the wife or slept there again, that the parties dated other people, that they did not thereafter attend business, social, or family events together, and that the wife's three dissolution petitions identified that date as the date of separation.

Those considerations were relevant but not determinative, the appeals court said. It characterized other evidence as extremely relevant, including the parties' close personal ties for the following 14 years. They saw each other regularly, their economic relationship remained unchanged, and they acquired real property together. He continued to receive mail at her residence and, on various forms, indicated that he resided there. She remained a corporate officer in the family business, and bank documents executed 13 years after the husband moved out indicated that they were married and that all of their property was community. In addition, the husband testified that he did not decide to end the marriage for many years, and he sent her many cards in which he 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." Id. at 312.

After reciting this evidence, the court reversed and remanded for a new trial to determine the date of separation.

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