One question that is often asked, and is very crucial in a divorce case is “when did the relationship actually end?” The answer to that question can have a significant impact on tens, or hundreds of thousands, or even millions of potential community or separate property dollars.
California law states that “earnings and accumulations” of the parties living separate and apart is that respective party’s separate property. So the date the marital relationship ends (known as the “date of separation”) can be very important in determining what is separate property.
Over the years there have been several Court decisions which have held that, even though the spouses did not live with each other or have sexual relations, their actions (e.g., going on vacations together, sending Christmas cards, going to social and sporting events together) preserved the appearance of the marriage, such that the accumulations and earnings of the spouses during that period of time would remain community property.
Since then, the courts have held that even the filing of the divorce petition is not necessarily conclusive proof of the date of separation. The courts have defined the issue as whether either or both of the parties perceived the rift in their relationship as final, and that the best evidence of this is their words and actions. In other words, the parties need to have a subjective understanding that their marriage is over, manifested by outward actions. Where the parties do not have a clear understanding that their marital relationship is over, and their overt acts create any ambiguity, then the date of separation may not be all that clear.
The bottom line is, parties to a divorce can continue to be cordial to each other, and attend family or parental functions, but to be on the safe side, they should do something to memorialize their understanding that the relationship is over (e.g., sending emails, voice messages, letter), and to demonstrate their true intent. To protect yourself, consult with a qualified divorce attorney to ensure you are taking the proper steps.