“Living Separate and Apart” – The California Supreme Court Announces a Bright Line Rule in Defining Date of Separation in California

On July 20, 2015, the California Supreme Court, in In re Marriage of Davis, ruled that parties must live in separate residences to be considered, “living separate and apart” pursuant to California Family Code section 771, which states that, “[t]he earnings and accumulations of a spouse . . . while living separate and apart from the other spouse, are the separate property of the spouse.”

Although the Court suggests that this bright-line rule has been and continues to be the state of the law prior to this decision, as a lawyer practicing exclusively in the area of Family Law for the past decade, this was not my understanding of the law concerning date of separation. Instead, prior case law defined the date of separation as when, “ . . . the parties‘ conduct evidence[d] a complete and final break in the marital relationship.” Marriage of Baragry (1977) 73 Cal.App.3d 444, 449, and that there had been, “ . . . a parting of the ways with no present intention of resuming marital relations, but also, more importantly, conduct evidencing a complete and final break in the marital relationship.” (In re Marriage of von der Nuell (1994) 23 Cal.App.4th 730, 736)

This required a factual determination of the parties’ circumstances, including, but not limited to, whether or not the parties engaged in martial relations, slept in separate rooms, continued to engage in family activities, lived in separate residences, separated their finances, took vacations together, and/or continued to celebrate holidays and special days as a family. The Court looked at a totality of the circumstances to determine whether or not there was in fact a “complete and final break” in the martial relationship, and although one factor, living in separate dwellings did not appear to be mandatory until this decision.

For example, in Davis, the parties stopped having sex after the birth of their son, which was nine years prior to the filing of the divorce. They slept in separate bedrooms, did their own laundry, drove separate cars to their son’s functions, took separate vacations, had separate bank accounts, and except for expenses for the children, managed their own finances. Although they ate dinner together, there was testimony from both parties that they elected to remain in the same home for the sake of the children. In every conceivable way, except for living under the same roof, it would appear that these parties were living “separate and apart.”

However, post-Davis, although moving out of the family residence does not automatically establish the date of separation, it is now a prerequisite. Although this will make it easier for Courts to determine this issue, the practical effect, as argued by the wife in Davis, can have harsh consequences. Specifically, some parties agree to live in the same house after separation for the sake of the children. Other couples cannot financially afford two households, and agree to live in the same home so that they can continue to preserve what may be their largest (and in some cases their only) asset (i.e., the family residence), until it is time to sell it and divide the asset (especially in cases where the property may have negative equity). Many times, especially older couples, simply have nowhere else to go until the home is sold, and for anyone remotely familiary with the practice of family law knows that this can sometime take years.

For these reasons and others, couples that once decided to live completely separate lives, but elected to live as “roommates,” no longer have this option if they want their earnings and accumulations to be their separate property. Davis seems to ignore (or at least discredit) the real life implications of their decision in favor of statutory interpretation, that, in this author’s opinion, really isn’t that convincing (i.e., as in Davis, it is not clear whether or not “living separate and apart” requires living in separate houses).

Why is this important? Well, first of all, pursuant to Family Code section 760, “[e]xcept as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.” Additionally, Family Code section 4336(a), “[e]xcept on written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal separation of the parties where the marriage is of long duration. (The same section goes on the define a marriage of long duration as a marriage of 10 years or more).” Accordingly, defining “during the marriage” and “marriage of long duration,” necessarily requires determining the date of separation, which significantly impacts the issue of characterization of property as well as spousal support.[1]

For example, the general rule on spousal support is that the spousal support obligation of a short-term marriage (i.e., under 10 years), is one-half the length of the marriage. In marriage over ten years, spousal support is “open-ended,” and cannot be terminated at trial unless there is an agreement between the parties. Under Davis, in Order to avoid being deemed a “marriage of long duration,” a party must move out of the residence whether they can afford it or not, or whether or not it is in the children’s best interests, so as to avoid the possibility of paying “open-ended” spousal support.

Although the Davis Court states that it is the legislature’s duty to change public policy, not the Court’s, and that if the legislature is unhappy with the result in Davis they are free to change it, this again ignores the practical effects of their decisions, as it can take years for the legislature to take action, and in the meanwhile, many divorcing couples will face the harsh results discussed above. While bright line legal rules are nice and convenient in certain areas of law, the area of family law is unique in the sense that it involves the most private of decisions between couples, often times involving the well-being of young children. As such, the Court’s should use some common sense and consider the practical realities of their decisions.

Although the Davis Court states that it is the legislature’s duty to change public policy, not the Court’s, and that if the legislature is unhappy with the result in Davis they are free to change it, this again ignores the practical effects of their decisions, as it can take years for the legislature to take action, and in the meanwhile, many divorcing couples will face the harsh results discussed above. While bright line legal rules are nice and convenient in certain areas of law, the area of family law is unique in the sense that it involves the most private of decisions between couples, often times involving the well-being of young children. As such, the Court’s should use some common sense and consider the practical realities of their decisions.

[1] It has been suggested that In re Marriage of Davis applies only to determining the earnings and accumulations acquired during marriage and will not impact the determination of a “marriage of long duration” for purposes of determining the amount and duration of spousal support, but this author thinks that such a limitation is impossible and impractical. In other words, there cannot be two definitions of the date of separation as it applies to property characterization and spousal support .