What is the date of separation?
It is common for parties to the dissolution to proffer different dates of separation, depending on the facts of their specific matter. The Court stated in In Re Marriage Hardin, 38 Cal.App.4th 448 (1995), “The question to be decided in determining the date of separation is whether either or both of the parties perceived the rift in their relationship as final. The best evidence of this is their words and actions.”
The Court in saying, in essence, that the parties need to have a subjective understanding that their marriage is over, manifested by outward actions. These actions can include living in two separate residences (In Re Marriage of Norviel, 102 Cal.App.4th 1152 (2002)), or not applying for joint credit (In re Marriage of von der Nuell, 23 Cal.App.4th 730 (1994)).
Why does the date of separation matter?
In dissolution proceedings, the date of separation can be a hotly contested issue, as seen through the very public divorce of Nicole Kidman and Tom Cruise, who battled over the exact date of separation at length. Some may wonder if the date of separation is irrelevant to them, or why it matters. There are two main reasons why the date of separation matters in dissolution: community property and spousal support.
Community Property: Property acquired before the date of separation is considered community property, and property acquired after the date of separation is considered separate property. Community property is defined in the California Family Code section 770 as “all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property." Separate property, on the other hand, is defined as “[t]he 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." Applying California law to a marriage situation, it is easy to see that while the parties are married, all the property acquired by the married person (with some exceptions stated elsewhere in the code) is community property and that the community property rights stop accruing once the parties have separated. Community property is considered owned equally by both parties and it is generally divided 50/50 in a divorce, while separate property is awarded 100% to the party who owns/earns it.
Spousal Support: Under Family Code §4336, “the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage…where the marriage is of long duration” and a marriage of long duration is defined as “a marriage of 10 years or more.” In contrast, for a marriage of less than ten years duration, Family Code §4320(l) states that support “generally shall be one-half the length of the marriage.” The distinction between marriages of short or long duration provides incentive for divorcing couples to pay close attention to the exact length of marriage if it is near the ten year mark. It is important to remember, however, that the Court will take factors other than the length of marriage into account when awarding spousal support, including ability to work, age, and the general ability of the spouse to support his or her self. See In re Marriage of Ackerman (2006) 146 Cal.App.4th 191.
The Los Angeles Times reported in November 1999 about the perils of not truthfully disclosing financial information in dissolution proceedings. The article highlights the story of a woman who hid her lottery winnings from her husband and got away with it until a misdirected letter gave her secret away. The article states:
‘ During his 25 years of marriage, Thomas Rossi never saw a marriage counselor, never strayed and never doubted a relationship so close that he shared an electric toothbrush with his wife, he said.
Then Denise Rossi shocked him by demanding a divorce. And she wanted it in a hurry.
Now he knows why: On Dec. 28, 1996--just 11 days before she filed for divorce--Denise Rossi won $1.3 million in the California Lottery.
She told no one in her divorce case, and Monday her secret caught up with her. A Los Angeles family court judge ruled that she had violated state asset disclosure laws and awarded her lottery winnings to her ex-husband. Every penny.
Superior Court Judge Richard Denner determined that she acted out of fraud or malice. He based his decision on a deposition in which Denise Rossi admitted that she concealed her winnings because she didn't want her ex-husband "getting his hands on" them.
"Moral of story: It pays to be honest from the beginning," said Marc Lerner, attorney for the 65-year-old jilted husband.
Lerner said tears rolled from his client's eyes when Denner announced his ruling in court. For her part, Denise Rossi, 49, said she was stunned and is contemplating her next legal move.
"Yes, there will be an appeal," said her attorney, Connolly K. Oyler of Santa Monica. He called the judge's ruling "very punitive."
But Thomas Rossi's lawyers say they are hearing it described another way: karma.
"Maybe people will think twice about hiding assets during a dissolution," said Lerner, of Brentwood.
Thomas Rossi could not be reached for comment Tuesday, but he weaves a compelling tale in his court papers. Before their divorce--and the fateful Lotto windfall--the Rossis were "a couple of homebodies" from the Westside who did everything together, he said.
"We shared the same bathroom, and we even shared the same electric toothbrush," he said in court papers.
Denise, however, tells a different story in her filings and an interview Tuesday. She said she had been unhappy for many years and was looking for a way out. He was always broke, and she was always working, she said.
Her chance came when she and five co-workers in a now-defunct clothing design firm pooled resources to play the lottery and hit the jackpot, sharing $6.6 million, she said.
"I'd wanted to get out of this relationship for years," she said in a telephone interview. She credits luck for her lottery windfall and blames her ignorance of the law for her failure to disclose the winnings.
She had her husband served with divorce papers at the little West Hollywood shop where he developed film and shot portraits of aspiring actors.
His business folded, and he declared bankruptcy in 1998. He went to work part time at a chain photo store.
Then fate struck. More than two years after the divorce, a misdirected piece of mail landed in Thomas Rossi's mailbox. It was a solicitation addressed to his ex-wife from a company that pays lump sums for lottery winnings and big legal awards.
The May 7 letter from Statewide Funding said, in part, that the company had "helped hundreds of lottery winners like you around the country receive a lump sum payment for the present value of their future annual lottery payments."
What lottery payments?
"I think he scratched his head for a while, saying: 'What? This can't be,' " attorney Lerner said.
The California State Lottery Commission confirmed in July that Rossi's ex-wife had won $1,336,000--payable in 20 annual installments of $66,800.
Thomas Rossi learned that Denise went so far as to have the lottery checks sent to her mother's address in Pleasant Hill in Northern California.
He obtained a court injunction a few days later. He said his shaky finances in the aftermath of the divorce made his former wife's secret "even more despicable." Had she disclosed the winnings, he would have received half under California's community property laws.
Fighting to hold on to her winnings, Denise Rossi told the court that the lottery ticket had been a gift from a co-worker. The judge didn't buy it.
Oyler, her attorney, said he might have had a chance during the divorce to help her keep the winnings--if she had only told him about them at the time.
"I could have argued successfully that it was her separate property," he said. "Or we could have argued and we would have reached some adjustment. But the judge got mad and gave it all to him." ‘
This particular tale is over a decade old, but its lesson still rings true today. California Family Code Section 2100(c) provides, in part, that parties to dissolution must provide “full and accurate disclosure of all assets and liabilities in which one or both parties have or may have an interest … regardless of the characterization as community or separate, together with a disclosure of all income and expenses of the parties.” If parties do not disclose their assets, and their dishonesty is uncovered, judges may award the entire asset or winnings to the innocent spouse. This form of punishment is not reserved for litigated dissolutions, and may be exercised in legal separations and even in mediation cases. In the case of the Rossi’s, Denise’s desire to keep her winnings led to a jackpot for her ex-husband and a vivid lesson to other divorcing couples to disclose their assets truthfully and thoroughly to avoid harsh punishment from the courts. As attorney Marc Lerner stated, it pays to be honest from the beginning.
In California, there are two residency requirements that must be met before one may file a Petition for dissolution of marriage or "divorce." First, one of the parties must have been a resident of the state for at least six months; and second, one of the parties must have been a resident of the county in which they are filing for at least three months immediately preceding the filing of the Petition for dissolution of marriage. If either one of the parties meets these requirements, then either party can file a Petition for dissolution.
What if you recently moved to California, or the county, and don't yet meet the requirements but still want to start the process? One could first file a Petition for Legal Separation and then once one met the residency requirements for a dissolution of marriage, one could then amend their Petition for Legal Separation to a Petition for Dissolution of Marriage. However, the new Amended Petition would have to again be served on the other party.
Maria E. Crabtree, CFLS