New “Date of Separation” Law Reinterprets “Living Separate and Apart”

New “Date of Separation” Law Reinterprets “Living Separate and Apart”
By Robert Chang Esq.

A bill was signed by Governor Brown on July 25, 2016 which would amend the law regarding family law divorce date of separation. The term “living separate and apart” was interpreted by the California Supreme Court last year in the controversial case In Re Davis (2015) as requiring a spouse to take the action of leaving the marital residence.

The main areas where this has affected divorce law in California has been in the area of property division and spousal support. Property is divided fifty fifty in California so long as it was acquired during marriage. (with a few exceptions)

The problems Davis created are primarily financial. Forcing someone to move out of a home before being considered separated ignores many of the financial issues that Californians face. In the past, courts evaluated multiple factors. Were the couple still sleeping in the same bedroom? Did they go to events together? Were they still intimate? The strength of the Davis case is clarity – it creates a bright line rule and discourages litigation over when the couple separated. The family court system is clogged already, and Davis cleared a lot of the uncertainty that surrounds property separation.

However, the problems were also formidable.

A hypothetical spouse who is sleeping on the couch for months would no longer be considered separated from his spouse for the purposes of California law, resulting in community property continuing to be accumulated. Supposing a wife were to get a bonus on July 1, 2016 for $2,000. This would be considered her money if the date of separation were June 30, 2016. It would not be split in the divorce. However, if the date of separation were July 2, 2016, the bonus would be split and the wife would only get $1,000, and her husband would get the other half, even if one of them were sleeping on the couch, so to speak.

Another problem was spousal support. Spousal support (alimony or patrimony) is based on the length of the marriage. Spousal support is temporary or permanent based on whether or not it exceeds or is under ten years, and the length of temporary spousal support is also determiend by the marriage’s length. Hence, the Davis ruling allowed spouses to game the system by maintaining the marriage despite a subjective intent to end it, with the underlying motive of receiving additional financial support.

Finally, there was the problem of the “in-spouse out-spouse” as it relates to home-owners. As they say, possession is nine-tenths of the law. Where a spouse has left the home, it is hard for him or her to get it back. If home ownership is involved, a spouse would have to get an order for the court to get the in-spouse to move out. This would be hard since courts tends to favor the status quo. The problem is compounded even further when there a children involved. The spouse who wants to definitively end the marriage but at the same time wants to keep living in the house would have to execute the legal gymnastics of moving out, and then filing a motion, getting a hearing, and then showing the judge why he or she should stay in the house, and then get a court order to move back in. This could easily take months.

The average median individual income in the state is around $50,000 – taking into account taxes, medicare, and social security, this leaves roughly $3,000 per month for the average Californian. (forget about retirement) Assuming that he or she spends the suggested 28% to 33% of net monthly income on housing, this means that the average person shouldn’t be spending no more than a $1,000 per month on rent.

Most Californians live in the San Francisco Bay or Southern California coastal area where rents can easily exceed $2,000 per month for a two bedroom apartment. As a result, the Davis case was tone deaf to many of the financial issues that result from a divorce, which results in a decrease in actual income for everyone (since the cost of living is less per head when buying in bulk) even without the doubling of housing expenses.

All in all, this law has been anticipated for months as Davis has created all sorts of unfair results and has been very unpopular, especially among practitioners. However, whether or not courts will continue to apply pending cases based on Davis remains to be seen, as it may trigger the rule against the due process prohibition of laws being applied retroactively.


Robert Chang Esq.

Law Office of Robert Chang

1120 E. 14th Street, Ste. F
San Leandro, CA 94577

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