Living Apart is a Threshold Requirement to “Being Separated” in a Divorce

The California Supreme Court issued its long-awaited decision resolving the meaning of “living separate and apart” under Family Code section 771, which provides that “[t]he earnings and accumulations of a spouse . . ., while living separate and apart from the other spouse, are the separate property of the spouse.” 

In Marriage of Davis, Husband and Wife had stopped sexual intimacy after the birth of their son in 1999, and had moved into separate bedrooms sometime between 2001 and 2004.  By 2004, they were “living entirely separate lives” according to Wife.  Divorce was discussed, but they stayed together for the sake of the children.  Both attended their children’s school activities, but would take separate cars.  Husband did his own laundry.  Both parties prepared meals, but wife would not prepare anything special for husband.

From the outset of their marriage, the parties maintained a joint bank account managed by Wife.  However, Husband opened a separate bank account in 2001.  In 2003, Wife reactivated a separate bank account of her own.  Both parties continued to contribute to the joint account.

In June 2006, Wife told Husband she was “through” with their marriage.  She presented a ledger itemizing their joint and individual expenses, with the goal of funding the children’s expenses jointly while being solely responsible for their own respective personal expenses.  The parties then began “acting simply as roommates.”  Wife moved out of the marital home in July 2011.

The Supreme Court held the parties were not living “separate and apart” under Family Code section 771 until July 2011, when Wife moved out of the marital home.  In so holding, the Court relied on a detailed review of the legislative history of Section 771, along with the plain meaning of “living separate and apart.”   The Court endorsed the analysis of a 2002 Court of Appeal decision (In Re Marriage of Norviel (2002) 102 Cal.App.4th 1152), which reasoned that “living apart physically is an indispensable threshold requirement to separation.”

The Supreme Court acknowledged—but was not swayed by—the concern that requiring a physical separation may inhibit the transition period needed to appropriately untangle a marriage.  Moreover, the financial reality that many couples getting a divorce need to stay in the same residence for economic reasons was not persuasive to the Court’s analysis.  In addressing the issue, the Court noted this “unfortunate state of affairs is not a sufficient basis for a divorce court to ignore a clear statutory mandate.”  As such, the Supreme Court concluded that, absent legislative intervention, it was obligated to follow the Family Code as written.

The Court thus adopted the bright-line rule that “living apart physically is an indispensable threshold requirement to separation.”  However, the Court expressly left open the question for divorce courts of “whether there could be circumstances that would support a finding that the spouses were living separate and apart . . . even though they continued to literally share one roof.”  While the majority’s opinion did not provide further guidance to divorce courts on this issue, a concurring opinion by Justice Liu summarized the proper inquiry as follows: “the question is whether the spouses, in addition to their intent to separate, have demonstrated unambiguous, objectively ascertainable conduct amounting to a physical separation under the same roof. . . In order to qualify as living separate and apart, the spouses must have a living arrangement that clearly and objectively signals a complete and final termination of the marital relationship.”

In re Marriage of Davis (2015) 61 Cal.4th 846