Date of Separation

Katie Burke, The Wald Law Group, P.C.

A couple cannot be considered separated if they live together in the same home, the California Supreme Court has decided.

Divorce Sheryl Davis told Keith Davis that she was “through” with their marriage on June 1, 2006; filed for divorce on December 30, 2008; and remained in the marital home until July 2011. In August 2006, Sheryl and Keith took a vacation to Hawaii with their children, and continued to celebrate birthdays and holidays as a family.

Between Sheryl’s announcement that the marriage was over and her filing of the Petition, Sheryl began working full-time, thus substantially increasing her earnings, and Keith quit his job. In court documents, Sheryl listed the parties’ date of separation as June 1, 2006. Keith initially claimed January 2, 2009 as the date, and later amended his claim to July 1, 2011.

A divorcing couple’s date of separation is significant, and is often the subject of dispute between them. Family courts generally view financial transactions made “during marriage” as joint decisions, with the benefits and consequences to be equally shared, whereas both good and bad financial circumstances occurring “after separation” and before entry of a divorce judgment are, with certain exceptions, the separate gain or burden of the person engaging in any given financial transaction.

Considering the question as though for the first time, without deference to preceding cases on this issue, Chief Justice Tani Cantil-Sakauye reasoned that the plain language of the statute stating that couples are separated when “living separate and apart” suggests that an intent to end their marriage is insufficient to establish their date of separation. Justice Cantil-Sakauye also inferred from legislative history the intent to interpret this language literally.

At least one prior California case allowed a divorcing couple to live apart but not be deemed separated in the eyes of the law. That court, while clarifying that the reverse is not necessarily true, did not rule out the possibility that some spouses could be considered separated while living under the roof. But it distinguished the facts it was considering from any such hypothetical case.

Appearing to agree with this case precedent, and lending hope to divorcing couples who want to end their marriage before they can afford to scatter into two separate households, Justice Cantil-Sakauye stated in the case’s seventh 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.”

Finding that the Court of Appeal had committed legal error, the California Supreme Court reversed the appellate decision, sending it back to the Court of Appeal for a ruling consistent with the Supreme Court’s opinion.

Chief Justice Cantil-Sakauye was joined by Justices Kathryn M. Werdegar, Ming W. Chin, Carol A. Corrigan, Goodwin H. Liu, Mariano-Florentino Cuéllar, and Leondra R. Kruger.


About the author
Katie Burke is a senior associate with The Wald Law Group. She represents people in divorce and child custody cases, including complex financial dissolutions.