The bright line necessary to be considered legally separated in the State of California, once again, has become less bright. Dating back to 1931, to be considered legally separated, California law required spouses to be living physically separate and apart, having no present intention of resuming marital relations or taking up life together again under the same roof. In 1977, 46 years later, the appellate court held that the parties' conduct must evidence a complete and final break in the marital relationship. 17 years after that, in 1994, the California Court blended these holdings and required a court to examine these two components together to decide the legal date of separation. Now, in October of this year, the California Court has held that a married couple can be considered legally separated, even when they continue to live with their children in the family home, as long as substantial evidence shows that, in every meaningful way, at least one spouse has abandoned the marital relationship. In Re Marriage of Davis (Cal. Ct. App. - Oct. 25, 2013)
In Davis, the couple married in 1993 and had two children. Thereafter, sexual relations ceased and sometime after that, the wife moved into a separate bedroom. The husband assaulted the wife in 2005 and, when the school year ended in June 2006, the wife announced to her husband that the marriage was over. She then disentangled their finances, prepared a spreadsheet of household and child expenses and instructed the husband to pay 50% of the total into a joint account. Each spouse contributed the amount needed for community expenses, but retained any remaining income separately and was solely responsible for her/his personal expenses. All the while, they continued to live under the same roof, though wife made every effort to keep their interactions to a minimum. In her mind, they were roommates who continued to participate in family events together, traveled to Hawaii on a prepaid trip in 2006 together, and slept in the same hotel room (but not the same bed), all for the sake of their children. After 2006, there were no more family vacations together, but birthdays and other special occasions were celebrated as a family. Throughout this time, they maintained the appearance of an intact family. The wife then filed for divorce in 2008, claiming a June 1, 2006 separation date.
According to the husband, nothing changed in their relationship until the wife physically moved out of the family home in 2011. When she announced in 2006 that she wanted a divorce, he did not take her seriously because she had threatened divorce before. While he conceded that she implemented her new ledger system in June 2006, he agreed to it merely as a way to enable bills to get paid. According to him, the parties had an abnormal and dysfunctional marriage for most of their marriage, so, in his mind, neither had abandoned the marital relationship in every meaningful way, until she moved out of the house. Despite his sentiments, the wife prevailed with a June 2006 separation date.
So which of the following factors in a marriage would be meaningful enough to satisfy a legal separation? Ceasing sexual relations and moving to separate bedrooms? No longer going on family vacations together, but celebrating special days and exchanging holiday gifts? Separating finances and paying for personal expenses separately? Quite often, people share a life together under the same roof, without intimacy, in separate bedrooms with separate financial accounts, yet believe and would indeed claim to be meaningfully married. And what if these same two people remained sleeping in the same bed, in the same house, sharing joint accounts, pooling their incomes and expenses with no expressed intent by either to part ways, but one spouse truly believed there was no marriage because there was no intimacy, no family vacation enjoyed in several years, and no meaningful connection between the spouses?
The courts will now have to consider all factors. But, the bright line necessary to determine date of separation – dependent upon a substantial showing, in every meaningful way, of abandonment by at least one spouse of the marital relationship – is less clear now.
Contact Sharon Jill Sandler
Update:
In February, 2014 the California Supreme Court voted to grant review in this case. The Supremes have limited the issue to be reviewed to the following: May a couple who reside in the same residence qualify as living separate and apart for purposes of satisfying the statutory requirements of being legally separated and determining the couple's respective property rights, separate or community. In an now-vacated opinion, the Appellate Court held that a trial court had not erred by determining that divorcing parties' date of separation was approximately five years before wife moved out of the family home.
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