What Determines a Date of Separation?

If you are contemplating divorce, establishing a date of separation is crucial and can heavily impact your matter. IRMO Davis, Sheryl and Keith married in 1993 and have two children. In 1999 the marriage between Sheryl and Keith broke down and they stopped sharing a bedroom. Sheryl believed the marriage over but agreed to keep up appearances “for the sake of the children.”

In 2006, Sheryl told Keith she intended to end their marriage. She told him they would share expenses, took Keith off her credit cards but continued to live in the family residence. Sheryl filed for divorce in December 2008, listing the Date of Separation as June, 2006. Keith filed a response with the Date of Separation as January, 2009. Sheryl remained in the residence until 2011, after which Keith amended his Date of Separation to July, 2011.

Unable to agree on a date of separation, the matter was brought to trial, where the court found the Date of Separation was June, 2006. Sheryl’s intent to end the marriage and litigation had commenced a year and a half prior to Keith’s amended Date of Separation supported Sheryl’s Date of Separation. The trial court relied on the case of Marriage of Baragry, which looks at all circumstances, to determine the Date of Separation, even after one party leaves the family residence. Keith relied on the rule of Marriage of Norviel, which a couple cannot be separated until one physically moves out of the residence. After trial, the date of separation was further contended and brought to the Court of Appeals where the trial court’s initial ruling was upheld.

In most cases involving Date of Separation, spouses have already moved out of the family home while continuing to maintain financial and social relations, evidencing a lack of emotional separation, even if actually physically separating. The Davis court saw no reason why the same rule should not apply to spouses who continue to live in the residence but have abandoned the marital relationship.

In February, 2014, the California Supreme Court granted review to determine which rule (Norviel or Baragry), should be followed when determining Date of Separation. For the time being both are in effect but stay tuned.