Date of Separation
Issue: as a general rule, earnings aquired after the date of separation are the separate property of the earner. What determines the date of separation? The following case offers and example...
Husband and wife were married in 1986. Wife became chronically ill in 1993 and the couple stopped living together. Husband moved out of the home, but continued to provide health insurance to his wife through his employer. The couple also continued to file joint tax returns, and husband financially supported wife through 2004 in the form of $400 to $600 monthly payments. In 1996, wife was diagnosed as being bipolar; son was bipolar as well. Son lived with the wife until 2003; husband and wife talked daily throughout this period. Husband also visited on holidays and had some occasional meals. In 2001, husband made a downpayment on a mobile home for the wife and son to live in. The title was in husband's name alone, but the couple both signed the mobile home park documents and represented that they would be living there as husband and wife. He, in fact, did not live there but paid all mortgage, tax and insurance payments. He continued to pay the mortgage even after wife moved out.
In 2004, husband notified wife that he was going to file for divorce. In June 2005 he filed his petition, listing 1993 as the date of separation and provided affidavits in support of contention that he intended to end his marriage in 1993. In early 2006, the family law trial court found that 2004 was the first time husband clearly articulated to wife his intent to end their marriage. The court also found it to be a long-term marriage pursuant to Family Code, section 4336 and ordered husband to pay $700/mo in alimony until death or remarriage plus attorneys fees. The mobile home and the couple's pensions were found to be community property.
In August 2006, husband filed a request for statement of decision; it contained 81 questions for the court to answer. A statement of decision was not issued prior to entry of judgment in October. Husband appeals.
The date of separation is a factual issue to be determined by court by preponderance of the evidence. Pursuant to Family Court, section 771, a spouse's earnings and accumlations while separated is separate property. Generally, the date of separation is the date on which either party does not intend to resume the marriage and makes it known to the other party.
The Court of Appeals found that the trial court did not abuse its discretion in not discussing each question listed in husband's request for a statement of decision - it need only explain factual and legal basis for it's decision. Although the trial court discounted some of wife's testimony, it ultimately found husband's conduct to be inconsistent with an intent to end the marriage in 1993. To determine date of separation, the must be both a subjective and objective intent to end the marriage. (See In re Marriage of Norviel (2002) 102 Cal.App.4th 1152). Words and actions determine intent. Conduct such as attending joint counseling sessions, daily phone calls, joint tax returns, and paying for a mobile home that you hold out as your marital residence evidenced an intent to not end the marriage.
**UNPUBLISHED**
Case: Marriage of Niedermann
Court: Superior Court of LA County
Judge: Commr. Louise Halevy
NOT CITEABLE!
Husband and wife were married in 1986. Wife became chronically ill in 1993 and the couple stopped living together. Husband moved out of the home, but continued to provide health insurance to his wife through his employer. The couple also continued to file joint tax returns, and husband financially supported wife through 2004 in the form of $400 to $600 monthly payments. In 1996, wife was diagnosed as being bipolar; son was bipolar as well. Son lived with the wife until 2003; husband and wife talked daily throughout this period. Husband also visited on holidays and had some occasional meals. In 2001, husband made a downpayment on a mobile home for the wife and son to live in. The title was in husband's name alone, but the couple both signed the mobile home park documents and represented that they would be living there as husband and wife. He, in fact, did not live there but paid all mortgage, tax and insurance payments. He continued to pay the mortgage even after wife moved out.
In 2004, husband notified wife that he was going to file for divorce. In June 2005 he filed his petition, listing 1993 as the date of separation and provided affidavits in support of contention that he intended to end his marriage in 1993. In early 2006, the family law trial court found that 2004 was the first time husband clearly articulated to wife his intent to end their marriage. The court also found it to be a long-term marriage pursuant to Family Code, section 4336 and ordered husband to pay $700/mo in alimony until death or remarriage plus attorneys fees. The mobile home and the couple's pensions were found to be community property.
In August 2006, husband filed a request for statement of decision; it contained 81 questions for the court to answer. A statement of decision was not issued prior to entry of judgment in October. Husband appeals.
The date of separation is a factual issue to be determined by court by preponderance of the evidence. Pursuant to Family Court, section 771, a spouse's earnings and accumlations while separated is separate property. Generally, the date of separation is the date on which either party does not intend to resume the marriage and makes it known to the other party.
The Court of Appeals found that the trial court did not abuse its discretion in not discussing each question listed in husband's request for a statement of decision - it need only explain factual and legal basis for it's decision. Although the trial court discounted some of wife's testimony, it ultimately found husband's conduct to be inconsistent with an intent to end the marriage in 1993. To determine date of separation, the must be both a subjective and objective intent to end the marriage. (See In re Marriage of Norviel (2002) 102 Cal.App.4th 1152). Words and actions determine intent. Conduct such as attending joint counseling sessions, daily phone calls, joint tax returns, and paying for a mobile home that you hold out as your marital residence evidenced an intent to not end the marriage.
**UNPUBLISHED**
Case: Marriage of Niedermann
Court: Superior Court of LA County
Judge: Commr. Louise Halevy
NOT CITEABLE!
Labels: date of separation, divorce, separate property, statement of decision
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