‘Separation Date’ in Dissolution of Marriage Cases
By Regina Van Hecke
CALDA Legislative Chair
Supreme Court Ruling Regarding ‘Separation Date’ in Dissolution of Marriage Cases
On July 20th, 2015, the California Supreme Court ruled that married couples going through a divorce are not considered separated for the purpose of dividing assets and debts until one spouse physically moves out of the shared home. This unanimous ruling reinforces a “bright-line rule,” which makes the establishment of individual residences the minimum requirement for the legal definition of when a couple is separated and income and property are no longer shared. (A bright-line rule is a clearly defined rule or standard, composed of objective factors, which leaves little or no room for varying interpretation. The purpose of a bright-line rule is to produce predictable and consistent results in its application.) “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,” Chief Justice Tani Cantil-Sakauye wrote. “It reduces the potential for manipulation of a more elastic standard by the higher earner in situations of significant income disparity.”
This ruling was brought about by a 
case that involved a Sheryl and Xavier Davis, a Castro Valley couple, who were disputing over spousal support in their divorce case. Sheryl Davis claimed she and her husband, Xavier Davis, formally separated in 2006, when she declared the marriage over and they began living mostly separate lives. Though they drove separately to their children’s events, took separate vacations, and had divided all of their finances, they still continued to live under the same roof. Xavier, on the other hand, argued that their separation began in 2011, on the day that Sheryl physically moved out of their home.
Initially, a Superior Court judge and the First District Court of Appeal in San Francisco agreed with Sheryl Davis and her request that the date of separation be based on a 2006 date that reflected a time when the couple had separated finances and no longer lived as a married couple, but rather as roommates. However, the case was taken to the Supreme Court, who disagreed with the lower courts. The court said that “living in separate residences is an indispensable threshold requirement for a finding that spouses are living ‘separate and apart’ for purposes” of dividing property.”
This bright-line rule poses potential challenges for couples who wish to remain in the same house for economic or family reasons. In today’s economy, many couples are choosing to continue living under one roof as roommates in order to save money and/or to keep the family together for a time while transitioning into separate households. Lila Duchrow, Sheryl Davis’ attorney in the case, told the court that “a typical spouse in California, for example, may face further financial difficulties by being required to move out of the marital residence as a prerequisite to establishing the date of separation rather than intentionally and meaningfully living as roommates at the same residence.”
This ruling was made after careful consideration of the history of California’s statutory community property scheme as defined in Section 771(a). The language in the statute originates from a predecessor statute that was enacted 145 years ago in 1870 to protect ‘the rights of married women in certain cases.’ The 1870 Act provided that the earnings of the wife, ‘while living separately and apart from her husband’ were not liable for the debts of her husband and were the earnings and accumulations of the wife. The 1870 Act did not contain a definition of the phrase “living separate and apart.” The phrase “living separate and apart” had been considered ambiguous in the past and has been used flexibly for many years. For example, many couples could previously consider themselves separated if they lived separate lives as single persons regardless of whether or not they lived under the same roof. This new ruling does not easily allow for these types of common situations if there is a dispute about the date of separation.
To possibly confuse matters more, the Supreme Court left open the question as to whether parties could be living in separate residences even if they are still living under “the same roof”. This might be referring to situations where a partition or some sort of divider establishes two homes from what was once one. Justice Goodwin Liu wrote that there could be circumstances in which a divorced couple could live under the same roof and be considered “separate and living apart.” “The spouses must have a living arrangement that clearly and objectively signals a complete and final termination of the marital relationship,” he wrote. “Neither the Legislature nor this court has foreclosed the possibility that such a living situation may occur within a single dwelling.”
This new ruling means that for many individuals who now wish to file a Petition to open a divorce case, the listed ‘Date of Separation’ may need to be left unknown or “to be determined” if they are still living in the same home as his or her spouse. This rule has not been in place long enough for us to see the possible outcomes for couples living in the same home who wish to finalize a divorce case.
Obviously, if these couples can agree on a date to use for this “date of separation” then it would be a nonissue for their case. Given that most LDA’s are helping clients who are seeking to resolve their divorce cases outside of court, this new ruling does not seem likely to prompt any big changes in the way most LDA’s have been helping clients fill out Petitions for Dissolutions of Marriage. Given this new definition, we may see more clients choose to use ‘TBD’ (to be determined) as an initial answer for the ‘Date of Separation’ section of a Petition for Dissolution of Marriage until both spouses can agree on a mutual date.