Defining the Date of Separation

Posted April 25, 2012 in Family Law by Lonich and Patton.

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April 25, 2012
Defining the Date of Separation
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Prior to commencing a dissolution proceeding, a couple makes the decision to separate.  Under the California Family Code, “separation” requires more than marital troubles.  The parties’ legal date of separation occurs when the parties have come to parting of the ways with no present intent to resume their marriage and their conduct evidences a complete and final break in the marital relationship.

The date of separation is important to divorce proceedings because California Family Code section 771(a) states that earnings and accumulations while married persons are living separate and apart must be characterized as separate property.  This means that following separation, each spouse’s income and earnings are their own property not to be shared 50/50 as community property.

The parties’ date of separation occurs when both a subjective and objective test have been met.  First, either of the divorcing parties must have had the the subjective intent to end of the marriage, i.e., when one or both determined that reconciliation was no longer possible.  Second, there must be objective evidence of conduct furthering that intent to end the marriage.  In evaluating this factor, California courts will evaluate whether spouse acted or conducted him or herself in such a way that is consistent with the end of the relationship.  Some examples of objective conduct might include whether the parties ceased sharing a marital home; actual physical separation of the spouses and obtaining new addresses; whether the parties continued conjugal relations; whether the parties maintained their family lives and continued to attend social outings together; or whether they continue to act jointly in financial matters.  No particular facts are per se determinative of a date of separation.  Rather, the court will consider all evidence of conduct that bears on the subjective intent of the parties.

When a couple decides to separate, it is important for the spouses to get in touch with an attorney to learn what steps are necessary to ensure the protection of their property.  The San Jose family law attorneys at Lonich & Patton have decades of experience handling complex family law matters.  If you are contemplating divorce or separation, contact the San Jose divorce lawyers at Lonich & Patton.   Our Certified Family Law Specialists* can provide you with an in-depth analysis of your issues.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization

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Immigration Obstacles for Same-Sex Couples

Posted April 2, 2012 in Family Law by Lonich and Patton.

Love and marriage transcends borders all over the world.  It is not unheard of for travelers to meet locals and fall in love and live happily ever after.  In the United States, however, this happenstance does not have a happy ending for same-sex couples.

Federal law prohibits immigration authorities from treating same-sex couples the same as married heterosexual couples.  See Immigration, marriage laws leave same-sex couples in limbo.  Foreign same-sex spouses are viewed neither as married nor as a citizen.  As a result, they cannot leave the country to visit family or friends for fear that they may not be allowed back into the United States and they may not be allowed to work either.  While a U.S. citizen who marries a foreigner of the opposite sex can apply for a green card for the spouse to stay in the country and eventually become a citizen, a U.S. citizen who marries a same-sex foreigner cannot.

The Defense of Marriage Act (DOMA) does not allow same-sex couples to receive federal benefits available to opposite-sex couples no matter if they are married, in a civil union, or living in a state that recognizes same-sex marriage.  Last summer, the Department of Homeland Security issued new deportation guidelines that prioritized cases involving immigrants with serious criminal records and seemingly granted extra discretion in cases involving binational same-sex couples.  However, until Congress repeals DOMA or the courts strike it down, DHS will continue to enforce it.

Federal courts in Massachusetts and California have ruled DOMA unconstitutional and the Justice Department is no longer defending DOMA in federal court, however, the status of binational couples remains in the balance.  The San Jose family law attorneys at Lonich & Patton have decades of experience handling complex family law matters.  If you are contemplating divorce or separation, contact the San Jose divorce lawyers at Lonich & Patton.   Our Certified Family Law Specialists* can provide you with an in-depth analysis of your issues.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization

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