The only statute which is directly relevant to date of separation does not concern the date of separation as the main thrust of the statute.

Family Code §771 states:

“The earnings and accumulations of a spouse and the minor children living with, or in the custody of the spouse while living separate and apart from the other spouse, are the separate property of the spouse”.

However, there are three California cases, two major, which provide important law and useful factual analyses on determination of date of separation. Those cases are In Re Marriage of Baragry (1977), 73 Cal.App.3d 444, In Re Marriage of von der Nuell (1994), 23 Cal.App.4th 730 and In Re Marriage of Peters (1997), 52 Cal.App. 4th 1487.

Until von der Nuell, Baragry was the definitive case on the subject of what law and what facts determine when date of separation occurs. Despite language in Baragry, to be discussed below, most practitioners, and judges for that matter, tend to rely on the fact of physical separation as determinative.

In Baragry, Husband moved out of the family home on August 4, 1971. Wife argued the date of separation should have been four years later, on October 14, 1975, the date husband filed the Petition For Dissolution.

The Baragry facts were:

1. On August 4, 1971, husband moved out of the family residence, shortly thereafter moved into his own apartment with his girlfriend and remained living with his girlfriend up through the date of trial.

2. Although husband did not sleep in the family residence, he maintained continual and frequent contacts with his family, including he ate dinner at home with wife almost every night in 1971 and 1972 and thereafter ate at home at least three to five times per week. Husband also maintained his mailing address at the family residence.

3. Husband took wife and daughters on two trips.

4. On one occasion, December 24, 1971, husband slept at home.

5. In 1972 and 1973, he took the family to numerous UCSB basketball games.

6. In 1973, husband took wife, without the children, for a vacation to Sun Valley.

7. Husband frequently took wife to social functions, friends’ homes, dinners for professional and academic groups, etc.

8. Husband also sent wife numerous Christmas, birthday and anniversary cards, including at least one card, in which husband stated he “loved” wife.

9. In 1974, husband filled out an enrollment card for daughter’s private school, which stated in his writing, daughter “lived at home” with both husband and wife.

10. The parties continued to file joint tax returns and husband maintained his voting registration address at the family residence. Husband paid all the household bills.

11. Husband even brought his laundry home every week to wife who washed and ironed it!

12. Husband and wife had no sexual relations after August 4, 1971.

At all times during the period of physical separation prior to filing the Petition, wife maintained she “desired” a reconciliation.

13. Husband never stated he was not coming back to the family residence.

14. When asked why he did not file the Petition for Dissolution until four years after he moved out of the family residence, husband testified that his “solid mid-western upbringing” made him reluctant to file for divorce for a lengthy period of time.

The Baragry Court examined prior law and held that “the question is whether the parties conduct evidences a complete and final break in the marriage relationship. That husband and wife may live in separate residences is not determinative. Even the failure to engage in sexual relations is not determinative.”

The ultimate (financial) issue in debate was whether husband’s earnings from 1971, when he physically removed himself from the family residence, until 1975, when he finally filed a Petition For Dissolution, were community or separate earnings.

On the facts presented, Baragry held the date of separation was 1975 when the Petition For Dissolution was filed.

The law on date of separation remained “dormant” until Justice Klein’s majority opinion in von der Nuell.

The issue in von der Nuell concerned determining the date of separation between November 1, 1987, when husband removed himself from the family residence, and May 12, 1991, when wife filed her Petition to dissolve the marriage.

The facts in von der Nuell were:

1. Husband physically removed himself from the family residence on November 1, 1987.

2. It was a long marriage of twenty-eight years duration.

3. Starting in April, 1988, husband asked wife for an agreement to return home. She refused his request. In June, 1988, husband left his female friend and moved into a separate residence, but never moved back into the family home.

4. On July 13, 1989, husband filed a Petition For Dissolution which was never served on wife.

5. Husband paid support or paid a contribution to wife in the nature of support until May, 1991.

6. Wife always felt the marriage was “salvageable” and that things would be worked out, saving the marriage.

7. Wife sought the services of a marriage counselor and requested husband to participate in the counseling, but he refused.

8. The parties continued to discuss, and in fact attempted, reconciliation on numerous occasions.

9. From early 1988 through the spring of 1991, the parties maintained joint checking accounts, credit cards, tax returns and took title to an automobile jointly.

10. Husband maintained close contact with wife, including frequent visits to the home, taking wife on vacation, going out socially, sending her cards and gifts on special occasions and holidays.

11. Unlike Baragry, husband and wife continued having sexual relations from early 1988 through the spring of 1991.

While examining the prior case law, especially Baragry, von der Nuell reiterated: “The critical inquiry is whether the parties’ conduct evidences a complete and final break in the marriage relationship.”

The Court justified this requirement, based upon its determination it was consistent with the recognition that many marriages “are on the rocks for protracted periods of time and it may be many years before the spouses decide to formally dissolve their legal relationship.” The Court held date of separation did not occur until June, 1991, when wife filed her Petition For Dissolution, because the conduct between the parties did not evidence a complete and final break in the marriage relationship until that date.