A recent opinion published by the First District Court of Appeal revisited this issue. In In re Marriage of Davis, the parties had been married for 15 years when the wife filed for divorce, and both of the parties continued to live in the family home for more than two years after the divorce was filed. However, more than two years before she filed for divorce, the wife had informed the husband of her intent to end their marriage and requested that they divide their expenses. Even though the husband earned significantly more than the wife at the time, she wanted them to split the costs of their children and their home equally, and for each of them to be solely responsible for their own personal expenses. In furtherance of this plan, the wife provided the husband with a detailed breakdown of their expenses, and they both stopped paying for each other’s expenses for gas, food, gym memberships, life insurance premiums, and personal credit cards. Additionally, before the wife told the husband of her intent to end the marriage, they had already stopped going on dates or being physically intimate, they had been sleeping in separate bedrooms for at least two years, and the husband had already began depositing most of his earnings into a separate bank account. There was also evidence that any time that the parties spent together after they divided their expenses was just for their children’s benefit, they began taking separate vacations, and in the one instance where they did go on a family vacation with their children, they slept in separate beds, though they did continue exchanging Christmas presents until shortly before the wife moved out of the family home. The wife argued that the date of separation should be the date that she informed the husband of her intent to end their marriage and requested that they divide their expenses. The husband claimed that the date the wife requested that they divide their expenses was not the first time that she had threatened divorce, and ultimately argued that the date of separation should be the date that the wife moved out of the family home.
The standards used by the courts to determine the date of separation are laid out by case law, rather than by statute. As a result, they are complex, heavily reliant on specific factual situations, and, at times, can even seem to be contradictory. In its simplest form, the date of separation occurs when both of two conditions are met. First, at least one spouse must have no present intention of ever resuming the marital relationship. Second, there must be objective conduct evidencing a complete and final break in the marital relationship.
In determining whether or not these conditions are met, the court is to consider all factors bearing on a spouse’s decision to return or not to return to the marital relationship. In prior cases, these factors have included whether or not there is evidence of attempts at reconciliation and whether or not the parties subjectively believed that the marital rift was permanent. There is also an unfortunate pattern, in which one opinion will try to simplify the issue by offering an explanation, which is then rejected by a subsequent opinion. The first of these was a disagreement about the importance of public perception, wherein the older case’s opinion reasoned that whether or not the parties hold themselves out to the public as a married couple was important, but a newer case’s opinion states that this is immaterial. The second was a disagreement about the importance of living under the same roof.
At least one court opinion, In re Marriage of Norviel, has held that living separately is an indispensible threshold requirement for the date of separation, and in that opinion the court noted that this requirement typically means that the parties must live at different addresses, though even that case recognized that it could be possible for two parties living at the same address to be living separately apart. In Norviel, the court mused that, for two parties living at the same address to be living separately apart, there would probably have to be “unambiguous, objectively ascertainable conduct amounting to physical separation under the same roof.” However, in Davis, the court rejected the higher standard that was recommended in Norviel. Instead, the Court of Appeal in Davis reasoned that, when a spouse continues to live in the family home but has abandoned the marital relationship in every meaningful way, separation has occurred.
In Davis, there does not appear to have been any attempt at reconciliation by the wife after the date the wife requested that the parties divide their expenses. Furthermore, when the husband filed his response to the divorce petition, the husband initially listed a date of separation that had already passed, indicating that the husband then believed that they were already separated, even though the parties were still living in the same home at the time. In many divorce cases, the facts related to these factors are more complicated, which can make determining the date of separation even more disputed.
The standards used by the courts to determine the date of separation are complex, the analysis is factually intense, and even the actions taken by the parties early in the divorce proceedings can have an impact on the court’s decision. Therefore, it can be very important to have the help of an experienced family law attorney early in the divorce proceedings.
UPDATE: On February 11, 2014, the California Supreme Court granted a petition for review of Davis.