Living Separate and Apart: More Than Just Moving Out of the Bedroom

On July 20, 2015, in the seminal case of In re Marriage of Davis, the California Supreme Court ruled that a couple is only living separate and apart when they no longer reside together under the same roof. Thus, while the marriage may be over on an emotional, sexual or even public level, the spouses are not living separate and apart so long as they continue to reside together in the same household.

Legal Implications

The legal implications of this decision are notable: unless soon-to-be-divorced spouses are physically living separate and apart, the earnings and asset accumulation of either spouse can still be considered community property, and not the separate property of the spouse who earned those monies.

Davis is a major case for people considering a divorce and for family law attorneys. Many times, couples might continue to live in the same residence because one spouse cannot afford to move out. Some couples, even after determining the marriage is irretrievably broken, also continue to live together to minimize the impact of the pending separation for their children. Or, some divorcing couples are not ready to expose their decision to family and friends, and continue residing together until they are more comfortable with showing the world that the marriage is over. Some couples also choose to live together even after the dissolution case is filed in the courts.

Whatever the reasons for staying together – circumstances, economics or the interests of the children – they simply do not matter in the eyes of the law. If one spouse doesn’t move out of the residence, the spouses are not living separate and apart, no matter how long the marriage has emotionally ended. The circumstances of Davis illustrate this fact.

Davis Circumstances

In Davis, although the wife announced that she was “through” with the marriage in June 2006, the couple continued to live together in the same home. The wife filed for marriage dissolution two years later on December 30, 2008, and declared that the date of separation was June 1, 2006. Her husband’s response to the divorce petition listed the date of separation as January 2, 2009, three days after his wife filed for divorce. Even after this, the wife did not move out of the home until July 2011. Subsequently, the husband filed an amended response which listed the date of separation as July 1, 2011.

In a majority opinion, the California Supreme Court concluded that residing in separate residences is an indispensable threshold requirement for a finding that spouses are indeed living separate and apart. Thus, the Court aligned itself with the husband’s separation date of July 1, 2011, as that was when the wife physically moved out of the home.

Future Evolution

The Davis decision, though crystal clear that separate and apart means physically residing at different residences, is frustrating. What about the wife who sleeps in the guest house? Or the husband who sets up a new bedroom in the garage? Those couples may believe they are indeed living separate and apart, but until one of the spouses physically moves out of the home, the parties, in the eyes of the law, are not living separate and apart. Because circumstances like these are sure to occur in future divorce cases, it will be interesting to see how the definition of separate and apart established in Davis evolves in the years to come.