In the divorce between Mel Gibson and Robyn, his wife of twenty eight years, much has been made of the fact that they allegedly had no prenuptial agreement. This means that Robyn could be entitled to up to fifty percent of any marital assets acquired during the marriage. A lesser reported fact is the discrepancy between the alleged dates of separation in the legal papers.
Reports state that Robyn filed a Petition for Dissolution giving the date of separation as “to be determined.” In Mel’s Response he is reported to have alleged that August 26, 2006 was the date when they separated - about a month after his infamous DUI arrest.
A big deal? Maybe. The date of separation could mean big dollars.
This is because in any fight over the division of marital assets, a spouse is only entitled to a share of pre-date of separation earnings and assets. In the Gibson’s case, it is anybody’s guess how much money he made after 2006.
So if there is a legal fight, how is a California court going to decide upon the date of separation?
Section 771 of the California Family Code refers to “living separate and apart.” This has been interpreted by the Appellate Division as a two pronged test. First, at least one of the parties must have a subjective intent to end the marriage. This means that the Court will look at the party’s words and conduct to see if at least one of them intended to end the marriage. Specifically, it will not give any weight to what the tabloids print or the public thinks. For example, if it turns out that the Gibson’s had a secret agreement to separate in 2006 after the DUI incident but they decided to maintain a united front for the sake of the children, a court is not going to give any weight to the public appearance of a marriage.
Second, there must be some objective evidence of conduct furthering the intent to end the marriage. Words are not enough. Telling your wife that you want a divorce, by itself, is not going to do the job. The Court believes that actions speak louder than words: they are going to look at all the circumstances to determine if one of the parties did something to sever the marital relationship. One of those circumstances might be moving out the family home, but that is not always a deciding factor. There are several decided cases where moving out of the family home did not trigger a legal separation because the spouses continued to maintain close personal ties.
In the Gibson case, even if they remained living together in the same house after 2006, a Judge still has the power to look at all the facts and circumstances and decide that they separated earlier. The Judge is going to carefully consider their communications with each other along other evidence that shows they intended to end the marriage – e.g. whether they had intimate relations, attended social and business events together, had family meals, sought the advice of lawyers, went to marriage counseling, celebrated wedding anniversaries, maintained joint accounts, filed taxes jointly and conducted business transactions together etc. etc.
If the Gibson’s do decide to contest the date of separation, either one of them may ask the court to conduct a “mini-trial” on the issue.
The leading cases in California regarding separation and date of separation are Marriage of BARAGRY (1977) 73 Cal.App.3d 944, Marriage of Von Der NEULL (1994) 23 Cal.App.4th 730, Marriage of HARDIN (1995) 37 Cal.App.4th 448, and Marriage of MANFER (2006) 114 Cal.App.4th 925.