Under California law, a couple is separated when one spouse has expressed to the other spouse her or his intent to end the marriage, and the conduct of the spouse is consistent with her or his intent to end the marriage.

Separation does not require a decision or a judgment from a judge, but it is important in the divorce case that may follow. This is because Family Code section 771 classifies property acquired after the date of separation as the acquiring spouse’s separate property. The same applies to debts.  So, what a person earns before separation is community property; what is acquired after separation is that person’s separate property.

A lot of times people will agree that there was a date that both sides knew the marriage was over. It could have been a fight. Or maybe someone moved out. Other times, there may be a disagreement, but it really doesn’t matter because not that much changed in terms of property debt or property acquisition during the period of dispute.

But sometimes the dispute can be critical, and the parties will spend a lot of money trying to figure out who is right. This was the case in the recent case of Lee v. Lin, decided by the California Court of Appeal. In Lee, the husband (Lee) moved out of the family residence in May 2012 following 26 years of marriage. But the wife argued that separation did not occur until 27 months later –over two years later—when the husband filed for divorce.

It took two days of trial to figure this one out, but Husband won. In the words of the trial judge, the Hon. Beth A.R. McGowen, “Husband’s intention to end the marriage occurred on May 21, 2012 and his actions since then have been consistent with that”.

Wife appealed, but the husband won again. A panel of three justices ruled unanimously that there was “no error in the trial court’s consideration of the evidence or application of the law”.

The wife had tried to argue that her case was like those in which one spouse’s move from the family residence was not enough to establish separation. But those other cases, the appellate panel noted, “all involved far more ongoing engagement after the move”. In this case, when Husband moved out, he transferred $280,000 to a joint account to distinguish past community earnings from prospective separate earnings”. The justices further observed “[h]e signed a one-year lease for an apartment, moved essential possessions from the family home, and he returned to the residence only to retrieve additional possessions”. He even returned his key to the wife and refused to give her a key to his apartment. In short, between the moveout and the filing of the divorce petition, there was no attempt at reconciliation.

This case arose out of Santa Clara County, but because the appeals decisions was certified for publication, the decision is binding precedent on lawyers and trial judges throughout the State of California.