When a couple is contemplating divorce, one extremely important factor is establishing the date of separation.  This critical date sets “the end of the community” and establishes that everything acquired after that time is presumptively the separate property of the party that acquires it. The 2015 Davis case created an important change in the criteria that the courts use to establish the date of separation. This case has far-reaching impacts for couples who intend to separate or have already separated. 

In July of 2015, in Re Marriage of Davis, the California Supreme Court ruled that the parties needed to be living in “separate residences” in order to establish the date of separation. This major finding is quite different than the prior test to set the date of separation. Before this finding, the court considered the totality of circumstances involved: how does the couple hold themselves out to the world, do they continue to file joint taxes, do they sleep in the same bedroom, are they seen going out to dinner together, going on vacation together? 

This decision has far-reaching impacts. Probably most significant are the economic impacts. A couple simply may not have the funds for one of them to move out of the family residence. The advice I would give to a client is to do whatever you can to separate yourself physically as much as possible.

That might mean living with a friend, subletting an apartment, or moving in with a parent to create the appearance of physical separation. It may even make sense to negotiate some upfront money so one of the parties can pay the other to move out in order to establish the date of the separation. 

The court didn't say a couple could not establish “separate residences” under one roof. There is even the possibility that if a couple has a large enough home, they could move to two separate ends of the house. This could possibly help their chances if they absolutely couldn't figure out a way for one of them to move out. 

Another significant impact of this decision is on the couple’s children, if children are involved. This is a highly emotional time for a family and the couple may want to keep living under the same roof for a period of time in order to ease the transition and maintain some familiar routines for the sake of the children. 

This decision could also be retroactive. While most judges would probably not interpret the decision as such, one might go out on a limb and rule in favor of retroactivity, setting aside a judgment’s date of separation. This could unravel many previously settled aspects of a dissolution in terms of division of property.  

There are at least two current proposals to change the legislation in the Family Code in order to broaden the definition of what it means to be living separate and apart. Until there is definitive legislation on this matter—which is expected soon—couples contemplating divorce should be aware that they need to do whatever is necessary to physically separate their accommodations in order to establish a legal date of separation.

Kayla Horacek