California Supreme Court Rules on Date of Separation

In a marital dissolution proceeding, a court determines the division of property between the spouses by first characterizing the parties’ property as community or separate. Family Code Section 760 provides that all property acquired by the spouses during the marriage is community property “except as otherwise provided by statute.” One such statute is Family Code Section 771 (a), which provides that “the earnings and accumulations of a spouse, while living separate and apart from the other spouse are the separate property of the spouse.” Up until now when the parties disputed their date of separation, case law required the trial court to consider all relevant evidence regarding whether the parties’ conduct evidenced a complete and final break in the marital relationship.

On July 20, 2015, the California Supreme Court filed it’s unanimous decision In Re Marriage of Sheryl Jones-Davis and Keith Xavier Davis. In Davis the Court was asked to decide whether a couple can be living separate and apart for the purpose of Section 771 (a) when they live together in the same home. The Court concluded that the answer is “no.” The Court held that the phrase “living separate and apart” refers to a situation in which spouses are living in separate residences and at least one party has a subjective intent to end the marital relationship, which intent is objectively evidence by words or conduct reflecting that there is a complete and final break in the marriage.

In reaching this decision the Court rejects the argument that such bright line rule will be overly simplistic and lead to harsh results. For example, there may be spouses who need to reside in the same residence as “roommates” because of foreclosure, job loss, or other economic factors. Although these arguments are not without weight, the Court rejects them and holds that the requirement of separate residences for the purpose of section 771 (a) promotes the public policy by providing predictability to the parties and their attorneys.

Time will tell whether this decision simplifies the practice of Family Law, but for now the landscape has changed on the issue of date of separation. For assistance in navigating this issue, clients are well advised to consult with a Family Law attorney.

If you have questions regarding the date of separation, please contact our office to schedule a consultation. The Law Office of Family Law Specialist Richard E. Bawden also handles legal issues regarding adoption, annulment, collaborative divorce, divorce, domestic violence, litigation, mediation, legal separation, paternity, spousal support, pre-marital and post-marital agreements. Dial 909.792.0222 or email us at [email protected] You might also want to get more information at our website: The Law Office of Richard E. Bawden serves the Inland Empire including Riverside, San Bernardino, Rancho Cucamonga, Fontana, Redlands, Loma Linda, Mentone, Yucaipa, Beaumont, Banning and Hemet.

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