If a couple has been living separately without filing for divorce or legal separation, how is that handled in court?

Asked almost 5 years ago - Sacramento, CA

My husband and I have been living apart for 2 yrs. We jointly own both residences, we split because the fighting was intense. Nothing was ever legally filed. I thought we would eventually reconcile. Now he is wanting to file for divorce, and wants to use the separation date as 2 yrs ago to avoid a "long term" marriage in court. Is that possible?
I completely disagree with a separation date of 2 yrs ago, I would say MAYBE 6 months ago at the absolute earliest is when we really stopped all common practices as a couple. In the 2 yrs we've lived separate, we bought a home and filed joint taxes. I feel he is just trying to be spiteful by claiming the DOS to be an 8 yr marriage. Technically since nothing has been filed, we have been married legally for over 10 yrs. Will a judge see that?

Attorney answers (3)

  1. Pamela Koslyn

    Contributor Level 20

    Answered . CA marriages that last under 10 years are considered "short term," but the date of separation in this case may be arguable, and anyway, the dates only create a presumption that can be rebutted by proof of the parties' intent and continued work on the relationship, marital activities together, etc.

    When determining spousal support, the rule of thumb is that support will last for 1/2 the length of the marriage, but there are so many other factors involved, that's just a guideline, and there are likely arguments to increase or decrease it.

    You shuld see a family lawyer to disclose everything about your and your spouse's current and potential income, assets, liabilities, etc., to get some specific advice.

    Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.

  2. Donald Andrew Hansen

    Pro

    Contributor Level 11

    Answered . It sounds as if you are headed for a court battle over date of separation, as you are both aware that a 10-year marriage is generally considered "long term" -- which can significantly affect spousal support.

    Date of separation is set at the time the parties are unambiguously living "separate and apart”. That is the date at which spouses are physically separated due to a COMPLETE AND FINAL BREAK in the marital relationship, with NO PRESENT INTENTION of resuming the marital relationship.

    Simply “living separately” is not sufficient. At least one party must INTEND to end the marriage. But is it not enough that one party simply asserts that was his/her intent. If there was no unambiguous written or witnessed statement of intent, THE PARTIES' ACTIONS must “bespeak the finality of the marital relationship”. And that doesn't just mean now and then; the actions must evidence the CONTINUING intent from the alleged date of separation on. So, although intent must be proved, the proof of intent is in acts.

    Arguably, spouses can be “living separate and apart” even though living under the same roof, but there has to be “unambiguous, objectively ascertainable conduct amounting to a physical separation under the same roof.” And, arguably, even though spouses are living separately, they may still behave as if married.

    It will come down to who can present the best evidence -- and as always in court battles, documents and witnesses are essential. The court's standard for deciding between the competing claims is "preponderance of the evidence" -- basically, which set of evidence the judge finds slightly more convincing than the other (think of it as 51% more likely than the other set).

    You would be wise to consult competent counsel on this one.

    (Disclaimer: This information about California law and procedures is based on the limited facts provided by the person asking the question. It is not offered as advice to that person or any other reader and does not form an attorney-client relationship.)

  3. Luis Alfonso Barba

    Contributor Level 10

    Answered . This is a factual dispute, the result of which will have a substantial effect on the awarding of spousal support and division of property. Any facts that show an intent to return to the marriage such as attempts at reconciliation would help to strengthen your position

    It is strongly advised to seek the advise of counsel in this matter.

    Disclaimer: This answer does not constitute legal advice, and should not be relied upon as such. Each situation is fact specific and therefore any legal evaluation may vary. Please note it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the relevant facts and documents at issue. This answer does not create an attorney-client relationship.

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