Moving Out and Leaving a Mess


With the divorce rate showing no sign of waning, knowing the rules of divorce can make the difference between personal financial ruin and simple decoupling. As the rules of marriage are replaced with rules of divorce, the divorce process takes the singular legal marital unit of two people and creates two single units. Due to a recent California Supreme Court decision, the rules of how and when the relationship of marriage is officially over have changed. With change comes discussion. Is this change better for the lives of Californians, or merely a shortcut for overburdened judges and lawyers?


In marriage, the earnings of either spouse go into a community pot, shared equally, regardless of who earned the assets. For the last forty years, when parties decided that their marital relationship had ended and were separated, that shared accumulation ended. The legal language comes from Family Code Section 771(a), which 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.”


The date of separation has rarely been the date of filing for divorce. In most cases, the relationship disintegrated long before divorce papers were fi led. For years, the court viewed “separation” as requiring that the parties had no intention of resuming their marriage and that their actions demonstrated the marriage was over. This was not a bright line rule, and a lot of litigation has occurred trying to determine when the relationship was over. The determination of this date of separation is crucial to deciding when the community pool of assets splits into two separate pools of individual earnings and assets.


Unlike other fields, the laws of the family are not clean. In family law, violence, mental health issues, drugs or alcohol can make a complex situation increasingly volatile. To further complicate matters, some people indicate their intention to divorce and file the paperwork, but then return home and continue to sleep together. Others say their relationship is over but take vacations together as a family. Some still do their spouse’s laundry even as their family law attorneys try to sort out where the down payment for the community property house came from. Sometimes parties have had reunifications followed by even messier cataclysmic detonation, only to make up a few weeks later, further confusing the date of separation issue.


If there’s one thing courts detest, it is chaos; judges and attorneys, especially in the capricious world of family law, crave tidy resolutions. In IRMO Davis, the California Supreme Court tried to pull out their legal mops to clean up the date of separation issue by analyzing the meaning of “living separate and apart.” The case involved a married couple, S. Davis and K. Davis. The Davises married in 1993 and had two children. The marriage was tumultuous and the relationship really began to deteriorate in 1999 when their intimate relationship ended.


A few years later, they no longer slept in the same room. They did some activities together with their children, shared a bank account and sometimes vacationed together. By 2006, all of that ended. Ms. Davis announced the marriage was over and they substantially separated their finances. They lived under the same roof, but as roommates, for the sake of the children.


In late 2008, Ms. Davis filed for divorce, listing as the pivotal date of separation the date in 2006 when she announced she no longer wanted to be in a relationship with Mr. Davis. Mr. Davis first listed the separation date as just past the date of filing, then amended his separation date to the date when Ms. Davis moved out of the house in 2011. This allowed Mr. Davis to set up his argument that the parties begun to live separate and apart only on that date and since Ms. Davis was the higher earner, allowed him to lay claim to assets earned by Ms. Davis as community property for the entire time they resided under the same roof. By Ms. Davis’ date, that accumulation would have stopped a full five years earlier. Unsurprisingly, the stakes were high and many family law attorneys watched this case with great interest.


The Supreme Court of California decided to create a bright line rule. Simply stated, they ruled that living separate and apart required separate homes. For a date of separation to be established, there must be a moveout by one of the parties. At first glance, it seems a clean rule: if you want to split up, the court says you must physically split up. It is a tidy, neat and simple solution to a problem that has bounced around since the 1800s. Judges and attorneys will no longer have to spend precious court time litigating last kisses, laundry and shared vacations. For the last 40+ years, determining the point of separation has been a matter of evaluating the totality of the circumstances. Not all dissolutions are the product of hate. Some couples decide that, although they like each other enough as people, they are not right for each other. These couples may continue to live together until the conclusion of the dissolution legal proceedings. Should they be forced into the expense of separate residences to create a date of separation?


Other situations are less pleasant to consider. Imagine a wife who owns her house as her separate property and asks her abusive husband to leave and states that the marriage is over. He moves out of her room but not out of the house. What if she is too fearful or timid, after years of abuse, to seek a restraining order? What if he stays another ten years? Prior to this ruling, an attorney would have likely told her that as long as it was clear they were living separate and apart, even under the same roof, she was at a limited risk of further accumulation of community property. This is no longer true, and that wife is now in dire straits. What if, as has happened in several cases, after a move out, financial circumstances require a party to move back into the community home? Should this party be barred from a community resource and face homelessness rather than upsetting a date of separation?


For couples who have substantial resources, moving out to create a concrete date of separation may not be a big issue. What about less affluent litigants forced to live together by a lack of resources? It is not hard to imagine these scenarios creating imbalances and leading to unjust results. Forcing the date of separation to the date of physical separation will almost always benefit one party over the other. A totality of circumstances rule is not as tidy, but it may be more accurate and fair.


The California Supreme Court carved out a small divot in its ruling. In a footnote, it stated this case did not consider the circumstances where the parties live in separate residences within the same home. It would be easy to see this as an exception, but the language does not create an exception. Rather, it merely states that the issue was not before the court at the time.


Many will argue that the simplicity of IRMO Davis outweighs any potential for complications. In other areas of law, black and white thinking makes for clear and just decisions. Sadly, the murky waters of family law are far too mercurial for such simplicity. Divorce is an attempt to reign in the chaos and turmoil of love lost. Is it really such a shock that breaking of the bonds of the intersection of love and family doesn’t neatly and naturally split into two?


The courts cannot forget that if it was simple, the legal system would not need to be invited to the intimate dance of divorce. It is not realistic to define divorce as a legal solution to an emotional problem, nor a clean solution to a dirty problem. If the courts are to be just, then it will be necessary to again delve into the sordid reunifications and psychological dirty laundry in order to surface with an honest picture of the aftermath of the messiest of legal conundrums.

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