So you have called it quits on your marriage, however, you and your significant other are in agreement that each of you will have your own separate bedroom under the same roof. Whether this is a result of one of you losing your job or out of convenience or both want continuous contact with the children as their best interest. These are no longer factors. And while you both believe in your minds that you are separated and this intention and thought was determinative in the past, living under the same roof does not make you separated.
In the old days, in divorce and legal separation cases, the parties' date of separation had to be determined. Sometimes this issue is hotly contested and in those case a trial on the bifurcated issue of date of separation is held prior to the remaining issues being resolved. The reason date of separation can be contentious is the clashing of two fundamental divorce issues flow from the parties' duration of marriage as determined by the date of separation - community property rights and spousal support. However, as of July 2015, this issue has be clarified and laid to rest in our most recent ruling by the California Supreme Court in In re Marriage of Davis (2015) 61 Cal. 4th 846.
For most of us, we know that California is a community property stated and is defined in the California Family Code section 770 as follows: "Except 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." The other side of the coin can be seen in California Family Code section 771 (a), which states, "The earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, while living separate and apart from the other spouse, are the separate property of the spouse." Applying California law to a marriage situation, it is easy to see that while the parties are married, all the property acquired by the married person (with some exceptions stated elsewhere in the code) is community property and that the community property rights stop accruing once the parties have separated.
As potentially valuable property rights may stem from date of separation, determining the parties' date of separation is an important issue central to many divorce and legal separation cases. The party that loses his or her "date of separation" contention may have to give up more property or pay or receive support for a longer or shorter amount of time, depending on which side of the equation they are on. To determine the date of separation is to determine when exactly the marriage ended.
In the past, our courts followed various theories, one of the leading case on date of separation was In Re Marriage of Baragry (1977) 73 Cal. App. 3rd 444. In Baragry, the husband was an eye physician who had moved out of the house four years before filing for divorce. The court found the date of separation to be the date that he filed the petition for divorce and not four years earlier because, although he had moved out and was engaged in sexual relations with another woman, among other things he still ate dinner with his wife almost every night, took his wife and daughters on vacations, paid the household bills, filed joint tax returns, attended social and business events with his wife, and even brought his laundry home twice a month for his wife to wash and iron. The court used an "outsiders' viewpoint" to determine the parties' date of separation.
Another earlier case, In Re Marriage of Hardin (1995) 38 Cal. App. 4th 448, held that the date of separation test was stated as follows: “The ultimate question to be decided in determining the date of separation is whether either or both of the parties perceived the rift in their relationship as final. The best evidence of this is their words and actions. The husband's and the wife's subjective intents are to be objectively determined from all of the evidence reflecting the parties' words and actions during the disputed time in order to ascertain when during that period the rift in the parties' relationship was final.” (38 Cal. App. 4th 448, at p. 453) As can be seen above, date of separation can be a very important issue involving very complicated discovery and litigation.
This brings us to the present, married couples going through a divorce are not considered legally separated until one moves out of the house, the California Supreme Court ruled In re Marriage of Davis (2015) 61 Cal. 4th 846, rejecting arguments that other factors should play a role in dividing property and income in divorce proceedings.
Today the ruling by the Davis Court in known as the “bright-line rule,” which effectively makes the establishment of individual residences when a marriage breaks up the minimum requirement for the legal definition of when a couple is separated and income and property are no longer shared. It is thought that his new rule “promotes fairness by providing a measure of predictability to the parties and their attorney, as well as clear guidance to judges, while it reduces the potential for manipulation of a more elastic standard by the higher earner in situations of significant income disparity.” Davis, at 865.
The argument that the Court should look at both spouses’ words and actions to determine when they stopped living as a married couple, even under the same roof. The excuse that one party cannot leave the home due to financial hardship, foreclosure, job loss, not being practical or harsh economic times due to housing costs are so high. Are cast away and no longer can be sued to determine separation. Accordingly, Chief Justice Tani Cantil-Sakauye stated that the “separate and apart” language has been part of California divorce law since 1870, and “It seems to me that it has a plain meaning.”
Thus, if you are anything, but living apart, you are not separate. Contact the Law Office of Christopher C. Carter to review your marital situation.
In most of my consultations, my clients ask what should I do when faced with the possibility of a divorce and what do they need to do to ensure fairne...