Update: The case explained below was recently overturned by the California Supreme Court on July 20, 2015. The California Supreme Court ruled that a couple can not be considered separated until one of them moves out of the family home.
For some time California court decisions suggested that a couple can’t be considered separated until one of them moves out of the family home. Moving out didn’t automatically mean separation but it was expected to be part of it. As the housing market got worse in recent years, more and more couples decided to continue to share a home even when they considered the relationship over and one was ready to file for divorce. A recent California case, In Re Marriage of Davis, found a couple, Sheryl and Keith, had separated years before Sheryl moved out based on some ways that they made it clear they were separating.
Before I get into the details of the case, why is the date of separation so important?
Property acquired during the marriage and before the date of separation is considered community property. When separating, each spouse has a half interest in the community property. The classic example is the husband who wins the lottery after he claims to have already moved out. He wants the winnings for himself and doesn’t want to have to share any of it with his ex-wife or ex-husband. If the date of separation is found to be after he won the lottery, he may have to give up half.
The percentage of your spouse’s retirement to which you are entitled may also vary significantly depending on when you separated. Or consider the wife who earns a huge bonus at work right around the contested date. If it happened after separation she may be entitled to keep 100% of it. If the bonus came before separation she might have to split it with her spouse.
The issue in Davis is less clear. The court never explicitly spells out why the couple cares so much about the date of separation. However, it appears as if Sheryl paid a number of family expenses without any help from Keith during the period, from February 2011 to July 2011, when she claims she had already separated. I’m still not convinced that this amount of money she claims to be owed was worth making all the details of their family life public. Though all their fighting at the trial court is public record, it becomes even more public once one of them appeals the case and the court of appeal decides to publish the decision. I didn’t include some of the more personal details the court discusses.
How did Sheryl convince the judge that she separated in 2006 while still living with Keith?
Sheryl testified that in June of 2006 she created a spreadsheet through which she attempted to split the household expenses with Keith 50/50. Any other money would be kept by each as their own to spend as they wished. Sheryl also removed Keith from her credit cards and stopped using his credit cards for purchases. Sheryl’s testimony was supported by an e-mail she sent to Keith in 2007 in which she indicated “I don’t have any reason in the world to be positive or friendly with regard to you (your motives are clear) but until we are engaged in dissolution, we both need to be selfless to protect our children’s perspective of family.” Sheryl testified that soon after her claimed date of separation they each took the children on separate vacations. Before that, they had always vacationed as a family.
It is interesting to note that Keith’s claimed date of separation was a year a half after the parties had started divorce litigation. The trial court may not have agreed with Sheryl’s date of separation if Keith had claimed a later more realistic date. Each case is different though and some judges may require more convincing than others to accept separation while living in the same house.
If you consider yourself separated from your spouse and you are planning to live together for a time, you should consult with a family law attorney to determine steps you can take that will indicate separation. Call Paul D. McGuire at the Law Office of Paul D. McGuire today for a free consultation at 858-242-5667.