The California Supreme Court Redefines Date of Separation in Divorce Cases

By: Mark B. Baer, Esq.
Last Update: October 31, 2016

On July 20, 2015, the California Supreme Court held "that living in separate residences ― is an indispensable threshold requirement (Norviel, supra, 102 Cal.App.4th at p. 1162) for a finding that spouses are ―living separate and apart for purposes of section 771(a)."  In Footnote 7, the Court states, "Under the facts presented by this case, we have no occasion to consider, and expressly reserve the question, whether there could be circumstances that would support a finding that the spouses were ―living separate and apart, i.e., that they had established separate residences with the requisite objectively evidenced intent, even though they continued to literally share one roof."

I must admit that I have been enjoying watching my family law colleagues in California freaking out on the listserv for the Family Law Section of the Los Angeles County Bar Association as a result of that decision.  You see, the Supreme Court’s ruling makes a much more "bright-line rule" in determining the date of separation, especially when couples continue residing under the same roof. 

When all is said and done, the significance of the date of separation, at least in California, is primarily its impact on division of property and the spousal support. 

Community property is created from the date of marriage to the date of separation.  The earlier the date of separation, the less community property is created and vice versa. 

As far as spousal support is concerned, the general rule is that spousal support will last for one-half of the length of marriage and there is a presumption that it will be indefinite for marriages of long duration.  Therefore, a change in the date of separation likely alters the duration of spousal support.

If the date of separation didn’t have a monetary impact, it wouldn’t be such a hot button issue.  That being said, people typically have a pretty good idea when their marriages are over, regardless of the legal definition.  In other words, the significance of the date of separation is all about the money.  This is what happens when the actual conflict is ignored in order to resolve the "legal dispute." People's desire to achieve "emotional justice" in some monetary fashion is powering the litigation train.  Unfortunately, courts can't dispense "emotional justice" and money doesn't adequately fill that need. As a result, once a divorce has been litigated, the nastiness of the divorce typically overshadows any difficulties the couple had in their marriage. This is true, regardless of who received what in the divorce. 

Conflict itself is emotional.  "Social and emotional skills such as empathy are essential to conflict resolution.  Therefore, those best suited to work in conflict resolution should have high EQs (Emotional Intelligence). It has long been known that while lawyers tend to be analytical because the field requires it, they generally score poorly in terms of their EQ level. This isn't a problem when their job is merely to assist in resolving disputes. However, problems ensue in situations in which interpersonal relationships are involved, including but not limited to disputes between family members, employer/employee, neighbors, and business partners. It doesn't help that people frequently confuse 'conflict resolution or management' with 'dispute resolution.' People with low EQ levels can generally do one, but not the other."

As I keep saying, it is a grave mistake to confuse "legal justice" with "fundamental fairness." 

Should clients be aware of the law to make informed decisions? YES. Is this new case one example of the information clients must have in order to make such informed decisions?  YES.  Should their decisions be limited or otherwise defined by laws? Not unless doing otherwise would be illegal or a violation of public policy.

That being said, spouses could be severely impacted by the Supreme Court's "bright-line rule" with regard to date of separation, if one spouse wants to take advantage of the other based upon "legal justice," rather than "fundamental fairness." Always remember that "legal justice" comes at a cost - often times with regard to family dynamics and people with children together are tied together for the rest of their lives. Since outcomes are typically determined by the way in which the "game" is designed, maybe people should start designing the "game" to achieve a more optimal outcome. 

Life is not linear and therefore handling conflicts in a linear fashion has its limitations, to say the least.

It's nice not being so confined, which leads me to the following question:  What about mediation?


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