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California Divorce: To Move Out or Stay Under One Roof?

The California Supreme Court recently clarified the question of whether spouses can be considered separated while still living in the same residence in the case of In re Marriage of Davis 220 Adv. Cal. App. 4th 1109 (10-25-15) (DCA 1). Prior to discussing the holding, first let's explore the ambiguity presented by the Family Code. For practical purposes, Family Code Section 771(a) requires that spouses be living in separate residence in order for their earnings and accumulations to be separate property. Note, under California law final dissolution of marriage takes 6 months before the marriage is terminated. As a result of this 6-month period a question often arises as to whether the income and property accumulated during the 6-month period is separate or community property. In short, once the spouses are considered "separated" pursuant to FC section 771(a), their income and assets earned earned during the period are considered separate property.

However, the question often arises, as to whether spouses are separated pursuant to FC section 771(a) when they remain living in the same residence? The Davis case clarified this question by unanimously holding that couples must live in separate houses for them to be considered "separated" under FC section 771(a). 

The Court rejected many of the following factors that attorneys have used to to argue for an earlier date of separation:

  • 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. 

Though there are many reasons for both spouses to remain in the same residence when going through a divorce, both parties should consider this bright line rule regarding date of separation when trying to decide which course of action is right for them. This ruling is another reason spouses should consult with a Family law attorney sooner rather than later when contemplating a divorce.

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