Determining the date of separation in a divorce action has not always been an easy task. One spouse may think it’s when the intimacy ended and started sleeping in another room. The other may think it happened when the bank accounts were separated. Thanks to a new Supreme Court decision, it is now easy to make that call. On July 20, 2015, the California Supreme Court handed down an opinion that shatters the view of most family law attorneys when establishing a date of separation.
Prior to the recent Supreme Court decision in Marriage of Davis, a consulting attorney would have probably asked you questions that would help establish a date of separation. This would include: Have you separated bedrooms? Have you ceased with marital relations? Have your finances been divided? Has one of you stated his/her intention to end the marriage and acted as if the marriage was over even though you still live under the same roof? Because of the Davis case, those questions are now irrelevant.
The only question you should be asked now is, “Are you living in the same house?” We have now been told that you can only be separated if you live in separate residences.
If you are living in separate bedrooms, and are together only because of the children or finances, you are not separated according to the Supreme Court. The Court stated that the legislature’s language in the California Family Code is specific in stating that living separate and apart is “an indispensable threshold requirement.” Prior to the Davis case, the meaning of living separate and apart was up for interpretation. That is no longer the case. If you live under the same roof, you are not separated. If you are living at completely separate residences, you are separated.
So, what if you have a guest house on your property, or separate casita, and one spouse lives in it, instead of the main residence? I believe under the holding of the Davis case you are not separated unless you live at separate addresses.
Interestingly, the Court stated that this may create hardships for some couples, but indicated it is not their problem. They tell us that the problem lies with our state legislature. Let me explain. Laws are created by the legislature. The courts are only allowed to interpret the laws, not create new ones, hence the Court’s line of reasoning behind its harsh statement. They state that because the statute is specific that a couple must live separate and apart in order to be separated, it means just that, no matter what the intent of the parties.
If you are living together and think you are separated, think again, and consult with your attorney (preferably a competent one who keeps up with the ever changing law).
Pamela Edwards-Swift, Esq., Certified Family Law Specialist. Separation in California
