## Facts

- Doris E. Hardin (wife) and Victor K. Hardin (husband) married in 1961.
- On June 28, 1969, husband permanently moved out of the marital residence; the parties did not resume cohabitation.
- After 1969, evidence showed both separation-like conduct (dating others; no resumed marital sexual relations) and continued marital ties (ongoing economic relationship; wife’s involvement in the family business; husband receiving mail at the residence; husband representing on forms that he lived at the residence).
- Husband sent wife cards expressing love, referring to himself as her husband, and promising to change.
- As late as 1982, the parties represented on bank documents that they were “married and not separated.”
- The parties obtained a marital status dissolution in 1983, but did not divide property or set support obligations.
- In 1991, the parties stipulated that the court would determine the “date of separation” as a discrete issue affecting characterization of property and income.
- Wife argued separation occurred in 1982–83, when husband formed the intent to end the marriage and pursued dissolution to remarry; husband argued separation occurred in 1969 when he moved out.

## Issues

1. What legal standard governs determination of the “date of separation” for purposes of characterizing earnings and accumulations as separate or community property.
2. Whether the trial court erred by setting the separation date at June 28, 1969 based on a purely objective “societal perception” test despite finding husband did not decide to divorce until 1982–83.

## Decision

- The Court of Appeal reversed and remanded.
- The trial court applied the wrong legal standard by using an objective “society at large” test.
- The proper standard requires (1) at least one spouse’s subjective intent to end the marriage and (2) objective conduct consistent with that intent.
- Applying the correct standard, the record did not support June 28, 1969 as the date of separation.

## Legal Principles

- “Living separate and apart” for purposes of separate-property earnings requires more than physical separation; it depends on a marital break accompanied by intent to end the marital relationship.
- The date of separation is established only when at least one spouse has a definite subjective intent that the marriage is over and acts consistently with that intent.
- Objective evidence is required to corroborate intent; private intent without outward conduct is insufficient.
- A purely objective reasonable-observer or “societal perception” approach cannot substitute for proof of the requisite intent.

## Conclusion

The appellate court held that separation for community property purposes occurs when a spouse forms a definite intent to end the marriage and manifests that intent through consistent conduct; because the trial court relied on an objective “societal perception” test and fixed a 1969 separation date despite findings undermining intent until 1982–83, the judgment was reversed and remanded for redetermination under the correct standard.


In re Marriage of Hardin, 38 Cal. App. 4th 448 (Ct. App. 4th Dist. 1995)