Should You Stay or Should You Go?: In re Marriage of Davis and What it Means to be “Separate and Apart” for Married Couples Contemplating Divorce

One of the most contentious issues in a divorce proceeding is the division of the marital property, also known as community property or properties obtained during the marriage, between the spouses. 35 years ago, California became the first State to enact a law announcing that community property in a marriage stops being earned when the couple started to live “separate and apart.”[1] The governing statute, Family Code, section 771, subdivision (a) states, “[t]he earnings and accumulations of a spouse… while living separate and apart from the other spouse, are the separate property of the spouse.”

At first glance, the meaning of “separate and apart” seems simple–husband and wife break up, wife moves out and lives with her best friend or a relative; or as often depicted in movies and TV shows, the husband, moving out and living in a hotel or an apartment. Thereafter, one or both spouses file for divorce. Per section 771(a), each of the spouse’s earnings when one or both of them moved out will not be counted towards the marital property subject to division during the divorce. But this simplistic and literal understanding of the statute proved to be unworkable in real life situations.

In some situations, while divorce proceedings are underway, spouses have chosen to continue living under the same roof, oftentimes in separate bedrooms, for two main reasons: (1) to avoid the financial burden of living separately in different homes, and (2) to maintain the status quo with respect to parental rights and obligations to their children. The first rationale is straightforward. Why would someone waste money in a hotel or an apartment when there is a free room in the family home or perhaps a guest-house in the garage or backyard? More so, it may be wiser to split living costs (i.e., food, mortgage/rent, power, Internet, etc.) 50-50 than to pay for separate bills without regard to who makes more money. Indeed, in many amicable situations, couples have made these arrangements, lived separately under the same roof, share costs, and even dated other people prior to the finalization of the divorce proceeding. This practical approach has become even more apparent since the recent economic crisis.

The second rationale is more nuanced. Protecting the best interest and welfare of the children is at the heart of Family Law. It is common knowledge that sudden and drastic changes on a child’s life, including separation of their parents, can lead to emotional trauma. It is not surprising, therefore, that in some cases, parents may decide to live under the same roof for the sake of their children until the divorce is finalized, which may take years.[2] Maintaining the parental status quo for as long as possible provides stability for the child and also provides an opportunity for the parents to prepare the children, in a smooth manner, for the inevitable–their parents not being together in the future. Indeed, in amicable situations, some couples may decide to keep the separation secret or “low-key” for the sake of the children, which means continuing to “hold out” as married in the community. For example, both parents may go to PTA meetings and school activities, go to church as a family, attend neighborhood parties together, and celebrate birthdays and family holidays as a family until the children are ready to accept the parents’ breakup.

The circumstances we outlined above are not atypical. In fact, several years ago, we successfully litigated a very similar case where the husband insisted that the date of separation was the date when the divorce action was filed. The wife, our client, argued that the separation date was some 10 years prior to the filing of the action. The date of separation was important because it impacted how a number of investments made by the parties during the 10-year period and translating to millions of dollars were to be characterized, community or separate property. In said case, at the time our client decided to end the marriage, their daughter was still very young, and the adverse emotional effect on her was apparent to both parents. She begged her parents to stay together. The family home was large, containing two master suites and the parents agreed to postpone the physical separation and the divorce. They continued to live under the same roof to protect the well-being of their then young and emotionally vulnerable daughter. But aside from being parents to their daughter, it was very clear that they were living separate lives. They ceased any intimate or personal relations among each other, slept in two separate bedrooms, took their own personal vacations and trips, and socialized separately. For the sake of their daughter, however, the couple “held-out” as together to some community members. More than ten years later, when the daughter turned 18 and left the nest to go to college, wife immediately moved out and filed for divorce. At time of trial, the husband argued that the date of separation was the date when our client filed for divorce. After a 3-day trial the Court ruled in favor of our client, finding that the parties have been living separate and apart for some 10 years despite living under the same roof. The Court determined that the date of separation was the earlier date because there was no intent to resume the marital relationship and the parties’ mutual decision to live in one house for more than ten years after their separation was mainly for the sake of their young child

Understanding these realities, California courts in the past rejected a bright-line approach in determining the date of separation. Instead, as in the case above, they applied a “totality of circumstances” test to look at various factors and make determinations in a case-to-case basis.[3] In doing so, the courts have considered two basic questions: (1) whether at least one spouse has expressed intent of not resuming the marital relationship, and (2) whether there were objective conduct pointing to a complete and final break of the marriage.[4] Living in physically separate residences has been viewed by courts as one of many factors to consider but not a decisive factor in determining the date of separation. In 2002, the Appeals Court in In re Marriage of Norviel (2002) created a split in the interpretation of section 771(a) when it held that living separately, which typically means residing in different addresses, is a necessary threshold requirement in determining date of separation.[5] The case of In re Marriage of Davis (2015) put this split to the test.

As we highlighted in an article we previously published,[6] the facts of the Davis case mirrors the circumstances we outlined above. The Davis couple had two children: a daughter born in 1995 and a son born in 1999. In June 2006, Mrs. Davis announced to Mr. Davis that she was “through” with the marriage. But they continued to live together in the family home and split the bills 50-50. They took care of their own personal expenses since. As Mrs. Davis maintained, since then, they were simply “roommates.” However, they continued to take family vacations with their children and celebrated birthdays and holidays as a family, in all of which, they used their joint bank accounts. It is noteworthy that the couple had spoken about the divorce since 2004 but stayed together for the sake of the children. In December 2008, Mrs. Davis filed for divorce listing the date of separation as June 1, 2006. Mr. Davis responded and listed the date of separation as January 2, 2009, few days after Mrs. Davis’ initial filing. Mrs. Davis moved out of the family home in July 2011, upon which, Mr. Davis amended his response and listed the date of separation as July 1, 2011.

The trial court ruled that the date of separation is June 1, 2006 and the Appeals Court affirmed. The Appeals Court rejected the majority decision in Norviel, which held that living in physically separate residences is “an indispensable threshold requirement” for separation under section 771(a). Recently, the California Supreme Court, in the case of In re Marriage of Davis, settled the split in the courts’ interpretation of section 771(a).[7] The Court unanimously reversed the Appeals Court and affirmed Norviel, holding that section 771(a) requires that spouses live in separate residences in order for their earnings to be counted as separate property.

Writing for the Court, Chief Justice Tani Cantil-Sakauye reasoned that both the plain meaning of the phrase “living and separate apart” of section 771(a) and its history since 1870 were consistent with the conclusion that both separate residences and demonstrated intent to end the marriage must be present to find a couple separated under section 771(a). The Court found it worthy to note that there had been no negative reaction from the bench and the bar to the Norviel decision claiming that it introduced a “sudden new rule that was legislatively unintended and unworkable,” and that the Legislature had more than a decade to amend section 771(a) in response to Norviel but failed to do so.

Lawyers like bright-line rules because it means less litigation, which translates to lower costs and stress for the clients. But some legal scholars criticize the Court’s over-simplified and blunt interpretation of section 771(a) to require, as a threshold matter, that spouses must live in separate residences. As Prof. Shaun Martin of the University of San Diego Law School noted: “[W]hat if you’re living in the guest house? What if you’re living in the garage? What if you’re living in the den? What if you’re sleeping on the couch? At what point is your life sufficiently distinct from that of your spouse that you’re no longer ‘together,’ but are instead ‘separate and apart’?”[8] In a concurring opinion joined by Associate Justice Kathryn Werdegar, Associate Justice Goodwin Liu pushed back a little by stating that courts should not be bound by the “Legislature’s narrow understanding” of the term “living separate and apart” especially when spouses had made a “living arrangement that clearly and objectively signals a complete and final termination of the marital relationship.”[9] Thus, the current Supreme Court ruling does not totally foreclosed the possibility that a couple may be “living separately and apart” though they are living under the same roof.

To sum, Davis may have proposed a bright-line rule in determining the date of separation but as Justice Liu opined, the question remains open in many cases and as facts vary in each case, the issue may be more complex than how it seems. Determination of the date of separation may have a great impact on the division of the community estate. As such, it is imperative that individuals seek the assistance of an experienced family law attorney early on in a divorce.

[1] Paul Daniel Marks, Date of Separation for Divorces – In re Marriage of Davis [2015], Divorce and Mediation Blog (August 1, 2015), accessible at—in-re-marriage-of-davis-2015.html.

[2] Not to dismiss the situation where living together actually creates an unhealthy environment for the child and separate residences for the parties may be a better option.

[3] See, e.g., In re Marriage of Umphrey (1990) 218 Cal.App. 3d 647.

[4] See, i.e., In re Marriage of von der Nuell (1994) 23 Cal.App.4th 730.

[5] In re Marriage of Norviel (2002), 102 Cal.App.4th 1152.

[6] Diana P. Zitser, A House Divided: Separate Under One Roof (February 5, 2014), accessible at

[7] Unpublished Opinion of In re Marriage of Davis (2015), S215050, PDF copy accessible at

[8] Shaun Martin, Professor, University of San Diego, California Appellate Report Blog (July 20, 2015),accessible at

[9] Davis, supra.

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