Can a couple be considered to be “living separate and apart” if they continue to reside in the same home? That is the question currently before the California Supreme Court in the case of In re Marriage of Davis.

It sometimes happens that one or both spouses consider the marriage over and wish to divorce, yet they decide to stay together until the children are older or for other reasons. In these situations, at what point can the couple be considered separated? The answer to this question is vital to the determination of important issues in a divorce, such as the payment of support and the division of community property.

Specifically, California Family Code section 771 states that the earnings of a spouse “while living separate and apart from the other spouse” are separate property. It can therefore be very important in a divorce to establish the date at which the spouses first began living “separate and apart,” especially when the couple chooses not to divorce right away, as in the Davis case.

In this case, the wife considered the marriage to be over in 2000, but for the sake of the children did not file for divorce until 2008 and did not move out of the marital home until 2011. During that period, the couple had little interaction outside of family celebrations. The trial judge fixed the date of “separate and apart” in 2006, when the wife announced her intention to end the marriage and introduced a system where each spouse would contribute financially to running the household while being solely responsible for their own personal expenses.

The order of the trial court was affirmed by the California Court of Appeals in 2013. The husband appealed to the California Supreme Court, which accepted the case for review and is expected to rule on the matter later this year.