The Fourth District Court of Appeals in California says that the date when a couple becomes legally separated is based on when they privately decided to separate rather than the date they set for court purposes. This decision reverses an earlier decision by a San Diego Judge in Orange County Superior Court.
The case involves Maureen and Samuel Manfer. They were married in 1973 and then mutually decided shortly after their 31st wedding anniversary in 2004 that they were separating. Samuel moved out, but both of them decided to keep the news of their separation private until after the end of the year because they didn’t want to upset their children before the holidays. The couple did not have sex together or share their finances, but they attended social occasions and traveled together from time to time.
When Samuel filed for divorce in April 2005, he cited March 15, 2005 as their date of separation. Maureen disagreed, saying that their separation date was July 1, 2004. The date of separation was significant, seeing as Maureen had made more money than Samuel, so Samuel was entitled to half of her income during the time that they were together-whether this time was until July 2004 or March 2005.
California is a community property state. This means that unless a couple signed a premarital agreement before they were married, each spouse is entitled to half of the net value of all property acquired and income earned during the duration of their marriage.
California Family Code 760-761 addresses the issue of community property:
760. Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.
761. (a) Unless the trust instrument or the instrument of transfer expressly provides otherwise, community property that is transferred in trust remains community property during the marriage, regardless of the identity of the trustee, if the trust, originally or as amended before or after the transfer, provides that the trust is revocable as to that property during the marriage and the power, if any, to modify the trust as to the rights and interests in that property during the marriage may be exercised only with the joinder or consent of both spouses.
(b) Unless the trust instrument expressly provides otherwise, a power to revoke as to community property may be exercised by either spouse acting alone. Community property, including any income or appreciation, that is distributed or withdrawn from a trust by revocation, power of withdrawal, or otherwise, remains community property unless there is a valid transmutation of the property at the time of distribution or withdrawal.
(c) The trustee may convey and otherwise manage and control the trust property in accordance with the provisions of the trust without the joinder or consent of the husband or wife unless the trust expressly requires the joinder or consent of one or both spouses.
(d) This section applies to a transfer made before, on, or after July 1, 1987.
(e) Nothing in this section affects the community character of property that is transferred before, on, or after July 1, 1987, in any manner or to a trust other than described in this section.
Sagaria Law, P.C. represents clients in divorces, legal separations, division of property, and other family law-related matters. We have offices in San Jose, Fremont, and Monterey, and we take on cases in Santa Clara County, Alameda County, and Monterey County. Contact us today for a free, no obligation consultation.
C.A.: Ex-Couple’s Date of Separation Determined by Subjective Intent, Metropolitan-News Enterprise, November 13, 2006
California Family Code, Around The Capitol.com
Related Web Resource:
In The Marriage Of Manfer, In The Court of Appeal Of The State Of California, Fourth Appellate District, Division Three, November 9, 2006 (PDF)