Date of Separation in Divorce Actions: the Olden Days, Progression and the Current View from the Bench
The Olden Days"Evidence showed that there was no final parting of the ways or intention not to resume marital relations under the same roof until such time as wife refused to permit husband's return to their home"--Legislature adopted the Civil Code in 1872.
Progression"The question is whether the parties' conduct evidences a complete and final break in the marital relationship" Marriage of Baragry (1977)
"The court held that "legal separation requires not only a parting of the ways with no present intention of resuming marital relations, but also, more importantly, conduct evidencing a complete and final break in the marital relationship". Marriage of von der Nuell (1994)
the Current View from the BenchIn our view, the language in these cases--requiring consideration of " all of the relevant evidence" regarding " 'whether the parties' conduct evidences a complete and final break in the marital relationship' " (Umphrey, Baragry), requiring both a lack of "present intention of resuming marital relations ... [and] conduct evidencing a complete and final break in the marital relationship" (von der Nuell), and indicating that "[a]ll factors ... are to be considered" in deciding the " ultimate question" of "whether either or both of the parties perceived the rift in their relationship as final" (Hardin)--must be understood in the context of their facts, which reflect that in each case the parties had moved into separate places of residence. These cases do not address, and therefore are not authority for a conclusion that "living separate and apart" was intended by the Legislature, originally or subsequently, to require, as wife argues, only demonstrated conduct reflecting a subjective intent to part ways with no plan of resuming the marital relationship, which might, but need not necessarily, include physical separation. (Cornejo)
We conclude that living in separate residences "is an indispensable threshold requirement for a finding that spouses are living separate and apart". This interpretation of the statutory language aligns with the common under-standing of the words, the statutory history of the provision, and legitimate public policy concerns.