- Changes in California Law Regarding Date of Separation | Delfino Madden O'Malley Coyle Koewler
- “No-Fault” Divorce and Spousal Support
- Can Dating While Divorcing in California Hurt Your Case?
- Practice Areas
Since the duration of marriage has a direct impact on long term spousal support, the date of separation is very important in determining the amount of the long term spousal award. Historically, the courts in California have applied two different tests in deciding the legal date of separation in a marriage: Under the objective test, the court looks to the date the couple started physically living apart, with the intent of ending the marriage. Since physical separation alone does not necessarily mean the couple intends to divorce, the court also looks for clear, independently verifiable conduct from the individuals that establishes the marriage is over.
Under the subjective test, the court considers evidence from the divorcing couple as to when they considered the marriage to be over.
Changes in California Law Regarding Date of Separation | Delfino Madden O'Malley Coyle Koewler
For couples in high-dollar divorce cases, there is an inherent incentive of one party to argue the earliest or latest possible date of legal separation. Obviously, the courts have an easier time applying the objective test to the date of separation than the subjective test. Possibly because the lower courts were issuing inconsistent rulings in applying the subjective test, the California Supreme Court drew a bright line rule in In Re Marriage of Davis 61 Cal.
While specifically acknowledging that the statute, as interpreted in the case, could work hardships in specific cases, it held that,.
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It reduces the potential for manipulation of a more elastic standard by the higher earner in situations of significant disparity of spousal income. It provides separate property classification of earnings and accumulations where the need is greatest because each spouse is maintaining his or her own separate place of residence.
“No-Fault” Divorce and Spousal Support
It retains the presumption of community property for earnings and accumulations acquired during marriage during a period of time likely to be prior to the institution of court proceedings and any court order of support, thereby protecting the lower earning spouse. Subsequent to the holding in Davis, and as a direct result of it, the Legislature changed the law of how legal separation is to be determined by the courts in California. The preamble to the Bill acknowledges:. Under existing case law, a spouse is required to be living in a separate residence in order to be considered living separate and apart from the other spouse for purposes of characterizing the earnings of the spouse.
Can Dating While Divorcing in California Hurt Your Case?
The bill would direct a court to take into account all relevant evidence in determining the date of separation. Custody battles are often about how you conduct yourself around your child. While the court will not penalize you for dating someone new when it determines spousal support payments, a new dating relationship could have an effect on whether you are awarded custody of your child.
The court will look at your current relationships to determine whether you are a good judge of the character of the people you bring around your home. If your new love has a criminal record in his or her past, the relationship could reflect negatively on your argument for custody.
Starting a new relationship while you are ending your marriage can be a welcome relief and bring happiness to a stressful time in your life. However, you should be prepared for the effect it could have on your family law case.
If you are in this situation, not only is it a good idea to talk it over with your new partner, but is also a good idea to discuss it with your family law attorney to determine what the potential impact could be. While it might be difficult, it could be in your best interest to hold of on dating until your divorce is final. To answer the objective test, the court will determine when you started living apart from each other.
That usually happens when one of you moves out of the family home. Even if spouses are still living in the same home, there are ways to ensure physical separation. In such cases, however, the evidence would need to demonstrate unambiguous, objectively ascertainable conduct amounting to a physical separation under the same roof.
Physical separation is not enough to show that you are separated. Some people are living separate from each other for extended periods, but do not intend to end their marriage. That intent is the subjective part the court will consider.