separate and apart from the other spouse, are the separate property of the spouse. "
Although John did not sleep in the family residence, he maintained continual and frequent contacts with Jane and children, including dinner every night in 2008 and 2009. John also maintained his mailing address at the family residence. John also took Jane on 2 trips in 2008. John also took Jane to social functions, friends’ homes, dinners for professional and academic groups, etc. in 2008 and 2009. John also sent Jane numerous Christmas, birthday and anniversary cards, including at least one card, in which John said he loved Jane. John and Jane continued to file joint tax returns and John paid all the household bills. John even brought his laundry home every week and Jane would wash and iron it. John and Jane did not have sex after 12/31/07. At all times during the period of physical separation prior to filing the Petition, Jane maintained she “desired” a reconciliation.
1. Objective Test
To answer the objective test, the court will determine when you started living apart from each other. That usually happens when one of you moves out of the family home. In today’s tough economic times, however, that is no longer an option for some, because it often is too expensive to maintain two separate residences. Even if spouses are still living in the same home, there are ways to ensure physical separation.
As California Courts put it, “Our conclusion does not necessarily rule out the possibility of some spouses living apart physically while still occupying the same dwelling. In such cases, however, the evidence would need to demonstrate unambiguous, objectively ascertainable conduct amounting to a physical separation under the same roof. (Marriage of Norviel) If this is a concern for you, you should always consult an attorney for more information.
2. Subjective Test
Physical separation is not enough to show that you separated. Some people are living separate from each other for extended periods but do not intend to end their marriage. That intent is the subjective part the court will consider. At what point did one or both of you think that the marriage was over? When did you decide that you no longer wanted to stay married? In essence, the court will look at your conduct toward each other to see when the marriage “ended.”
Please note: Marriage counseling is usually a good indicator that you are NOT intending to separate.