The California Supreme Court Clarifies What Living Separate and Apart Means under California Family Code Section 771
Written by Justin Snell, Esq.
In Re Marriage of Davis
The Davis case is extremely important when determining the date of separation of the parties. The date of separation has a substantial impact on a case because property acquired after the date of separation is presumed to be the sole and separate property of the party who acquired it. Prior to Davis, the Courts would generally engage in a separate trial (bifurcated trial) to determine the date of separation based on all facts and circumstances. The key issue in Davis was whether the parties were living separate and apart while living in the same residence. The Court in Davis found that the parties were not living separate and apart despite the fact that they were managing the finances separately. The Court stated that the parties were not living separate and apart under Family Code § 771 because they lived in the same residence, despite the fact that their conduct otherwise demonstrated their intent to end the marital relationship. Living separate and apart is an indispensable threshold requirement in order for the court to affix a date of separation.
The Court did not foreclose the possibility that a couple could live separate and apart while sharing the same residence. However, the Court stated in a footnote,
“Under the facts presented by this case, we have no occasion to consider, and expressly reserve the question, whether there could be circumstances that would support a finding that the spouses were “living separate and apart,” i.e., that they had established separate residences with the requisite objectively evidenced intent, even though they continued to literally share one roof.”
Some critics of this case note that it seems the Court was hinting that if a residence was big enough or perhaps contained a separate guest residence that the Court seemed willing to consider that situation living separate and apart. Thus, it would seem that the test could discriminate economically against those whose residences were typical single family dwellings.
The Court created a bright-line test which may be beneficial in the future. However, the decision certainly changed whether a party’s conception of living separate and apart would be given that same weight and effect in Court. The effects of this case and possible legislative action (perhaps showing legislative disapproval of the Davis ruling) are yet to be fully realized.
IRMO Davis, 61 Cal. 4th 846