Law School Case Brief
In re Marriage of Hardin - 38 Cal. App. 4th 448, 45 Cal. Rptr. 2d 308 (1995)
The courts have neither defined the standard to be employed nor the factors to be considered in determining the date of separation. Nevertheless, the answers are implicitly contained within the cases. All factors bearing on either party's intentions "to return or not to return to the other spouse" are to be considered. No particular facts are per se determinative. The ultimate test is the parties' subjective intent and all evidence relating to it is to be objectively considered by the court.
Doris and Victor Hardin married in 1961. On June 28, 1969, Victor walked out of their apartment, and although he and Doris continued their economic relationship, saw each other often, and communicated regularly, they eventually dissolved their marriage 14 years later in 1983. By 1991, the parties had yet to divide their property or establish support obligations. In an effort to resolve those remaining issues, the parties asked the California state courts to determine the date of their separation. At the hearing, Doris contended that the parties separated in 1983 when Victor, wishing to remarry, went forward with the dissolution. The trial court, however, applied a standard of whether society at large deemed the couple to be separated based upon the facts and evidence and agreed with Victor that the date of separation occurred on June 28, 1969, when he moved out of their residence. Doris appealed.
Was the trial court correct in concluding that the parties' date of separation was when the Victor moved out of the marital apartment?
The court of appeal reversed the trial court's judgment and remanded for a new trial to determine the date of separation. The court held that the trial court improperly relied only upon facts surrounding Victor's moving out and disputed facts concerning the parties' social relationship thereafter. These were relevant, but not necessarily determinative. The trial court failed to also consider factors suggesting a continuing social and economic relationship. All factors bearing on either party's intentions to return or not to return to the other spouse had to be considered. The ultimate test was the parties' subjective intent and all evidence relating to it was to be objectively considered by the trial court to determine when either or both of them perceived the rift in their relationship as final.
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