Separated- must you physically move out?

Under California law, all earnings acquired after the date of separation are considered separate property. (Family Code 771(a).) The date of separation is determined by looking at when the parties began living separate and apart from the other spouse.  What constitutes living “separate and apart”, and is it even possible in instances where parties choose to reside in the same house?

Recent case law has muddled this evaluation. Some courts apply a bright line test and require the parties to physically live in separate residences apart from one another in order to meet the threshold for living separate and apart. Other courts review the totality of the circumstances by considering, among other things, the parties’ intent to permanently separate, how they pay bills and file taxes, in addition to their living arrangements.

Generally, courts have applied the “totality of circumstances” test to look at various factors on a case-by-case basis. In doing so, the courts have considered two basic questions: (1) whether at least one spouse has expressed intent of not resuming the marital relationship, and (2) whether there were objective conduct pointing to a complete and final break of the marriage. Living in physically separate residences has been viewed by courts as one of many factors to consider, but not a decisive factor in determining the date of separation.

Recently, however in In re Marriage of Davis (2015) 61 Cal.4th 846, the California Supreme Court held that phrase “living separate and apart” refers to a situation in which spouses are physically living in separate residences and at least one of them has the subjective intent to end the marital relationship. The Supreme Court followed the application from a previous case, In re Marriage of Norviel (2002) 102 Cal.App.4th 1152, wherein the court held that living separately is a necessary threshold requirement in determining date of separation.

However, the Supreme Court’s latest ruling in In re Marriage of Davis was not taken well by legal matrimonial organizations and legislative action was promptly enacted. Senate Bill 1255 the “Anti-Davis Bill” was proposed and argued that the cost of maintaining two household incomes during the pendency of a divorce may be too expensive and nearly impossible for certain parties.

Senate Bill 1255 was enacted and signed into law by Governor Jerry Brown on July 25, 2016. It will go into effect January 1, 2017.

Senate Bill 1255 adds Section 70 to the Family Code, which states:

(a)  “Date of separation” means the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following:

(1)  The spouse has expressed to the other spouse his or her intent to end the marriage.

(2)  The conduct of the spouse is consistent with his or her intent to end the marriage.

(b)  In determining the date of separation, the court shall take into consideration all relevant evidence.

(c)  It is the intent of the Legislature in enacting this section to abrogate the decisions in In re Marriage of Davis (2015) 61 Cal.4th 846 and In re Marriage of Norviel (2002) 102 Cal.App.4th 1152.

Senate Bill 1255 directs a court to take into account all relevant evidence in determining date of separation. Under this bill, living under the same roof is not a bar to establishing date of separation for separate property designation; instead, it is merely a factor that the court will review in determining date of separation.

Thus, parties wishing to be separated while also living in the same residence can still do so, so long as they have an express intent to end the marriage and otherwise conduct their lives as being separated.

The bill does not address retroactivity, however. Some legal experts anticipate courts will take into consideration its specific anti-Davis intent and apply the Bill on a case-by-case basis as needed.

If you are considering separation and have questions about how your current arrangement will implicate your legal separation or divorce proceeding, contact Braunstein Law a San Diego family law attorney to schedule a free 1/2 hour consultation to evaluate your case.


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