What is Our Date of Separation?

By Kimberly E. Lewellen

Can a married couple be considered “living separate and apart” if they continue to reside in the same home but only for the sake of the children, convenience, or other practical reasons?

The California Supreme Court answered that question in the case of In re Marriage of Davis 220 Adv.Cal.App.4th 1109 (10-25-15) (DCA 1), reversed July 20, 2015, holding that Family Code Section 771(a) requires spouses to be living in separate residences in order for their earnings and accumulations to be their separate property.

In the San Francisco Bay Area, we often see married couples “nesting” or continuing to live in the same residence, due to the high cost of establishing two homes in a particular school district, or because they want to maintain a “family nucleus” for the children. However, the couple sleeps in separate bedrooms, each holds separate bank accounts, and other than residing at the same address, one or both of them consider the marriage over.

The “date of separation” issue is critical in a California divorce because the date the parties are “living separate and apart” generally affects hotly-contested issues such as spousal support (marriage over 10 years is presumed a long term marriage under Family Code Section 4336); rights to post-separation reimbursements, offsets and credits; and the characterization of assets, debts, and obligations as community or separate property.

Specifically, the statute at issue in Marriage of Davis, California Family Code Section 771(a), states that the earnings of a spouse “while living separate and apart from the other spouse” are separate property. Thus, under Marriage of Davis, the date that triggers separate property characterization of earnings and accumulations, is the date one party establishes a separate residence.

The California Supreme Court rejected many factors which family law attorneys have historically used to argue for an earlier date of separation, in dividing property and income in divorce proceedings, for example:

  • Establishing separate bank accounts;
  • One party announcing that the marriage was over;
  • Taking separate vacations;
  • Sleeping in separate bedrooms;
  • Traveling to children’s events in separate vehicles;
  • Ceasing sexual intimacy;
  • One party taking the spouse’s name off of a credit card;
  • Testimony that one party continued to live in the home because it was her (or his) home as much as it was his but interactions were kept to a minimum.
  • “Keeping up appearances” for the sake of the children.

The unanimous ruling appears to establish a “bright-line rule,” which effectively makes the formation of individual residences a requirement for the legal definition of when a couple is separated under Family Code Section 771(a).

In her opinion, Chief Justice Tani Cantil-Sakauye reasoned that a “bright-line rule … promotes fairness by providing a measure of predictability to the parties and their attorney, as well as clear guidance to judges.”

“It reduces the potential for manipulation of a more elastic standard by the higher earner in situations of significant income disparity.”

Unfortunately, this also means a spouse considering divorce may need to make a decision between 1) leaving the home to cut-off community property characterization of income and accumulations by shortening the length of the marriage; and 2) staying in the home for the sake of the children although it may not be in the separating spouse’s financial interests.

Every case is unique, and attorneys are now making creative arguments to circumvent Marriage of Davis.  An important takeaway from this case is that California family law can often be complex, with issues of custody, support, and property being intertwined. It is important to seek legal advice from a family law attorney who can provide legal advice tailored to your specific circumstances.