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The California Supreme Court’s Recent Ruling on What it Means to be Separated

By unanimous ruling in the case of IRMO Davis, the California Supreme Court on July 20, 2015 clarified what it means for a couple to separate. Prior to the recent ruling, there was no requirement that the parties to live under “separate” or “different” homes to qualify as legally separated. Such a requirement would penalize those spouses who simply could not afford to maintain two separate households or those parents who have minor children together and stay in the same home (albeit separated) for the sake of their minor children and what would conceivably serve the minor children’s best interests (a united, yet separated set of parents). Further, by statute, once separated the earnings of each spouse (post-separation) are presumed to be the separate property of the earning spouse. California Family Code Section 760 provides that all property acquired by the spouses during their marriage is community property “except as otherwise provided by statute.” California Family Code Section 771(a) provides that “the earnings and accumulations of a spouse…, while living separate and apart from the other spouse, are the separate property of the spouse.” The Court answered the question of whether for purposes of California Family Code Section 771(a), whether a couple may be “living separate and apart” when in the same home – the answer was a resounding no. The California Supreme Court was convinced the legislature intended for there to be separate residences in addition to an intent to end the marital relationship. The recent decision came down in the case of the Keith and Sheryl Davis. The couple filed in 2008 for divorce, with a date of separation of June of 2006 listed by Sheryl while Keith claimed the date of separation to be January of 2009, but then later he amended his pleadings to state July 1, 2011 as the date of separation. Sheryl took the position that her marriage was over in 2006 when the parties acted more like roommates. Keith listed his date of separation by amended petition as July 1, 2011. The trial court found the date of separation to be June 1, 2006. The California Court of Appeals agreed and affirmed the lower Court’s decision. The California Supreme Court disagreed and reversed the lower Court. This holding will have serious repercussions for litigants going through a divorce unless the legislature acts to clarify the issue by statute (making his intent as clear as possible).