When a couple in California “separates”, it means that they stop accumulating community property and community debt.  Also, the date of separation is an important barometer for spousal support.  Often, orders require someone to pay based on how long the marriage was, from date of marriage till “date of separation”.

But just what does it mean to be “separated?  Yesterday, the California Supreme Court resolved a difference in opinion between two different branches of the State’s Court of Appeal and held that spouses must “be living in separate residences in order for their earnings and accumulations to be their separate property”.  This is because of Family Code section 771, which provides that “[t]he earnings and accumulations of a spouse . . ., while living separate and apart from the other spouse, are the separate property of the spouse”.  Accordingly, California’s highest court unanimously ruled that “[ordinary usage of [this] language itself contemplates the parties’ occupation of separate residences”.

Based on this decision, the court sided with the husband in a case called Marriage of Davis and reversed a judgment of the First District Court of Appeal, which had in turn upheld the decision of the trial court.  Writing for the seven member court, Chief Justice Tani Cantil-Sakauye noted that the parties, who had married in 1993 and stopped having sex, according to the wife, in 1999, stopped sharing a bedroom between 2001 and 2004.  In 2001, the husband started his own separate bank account and in 2003, the wife did the same.

In 2006, the wife told husband she was “through” with the marriage.  She removed him from her American Express credit card account.  On the other hand, the parties still had a joint account and they still celebrated special occasions, such as birthdays and holidays, together, even after 2006.

Wife filed for divorce in 2008 but did not move out of the house until July, 2011.  She claimed in her divorce paperwork that the date of separation was June 1, 2006, but the husband said it was July, 2011. After trial, the judge agreed with wife and said the date of separation was 2006.

But, as stated above, it was husband who prevailed, with the Chief Justice noting that the spouses must both have separate residences “and accompanying demonstrated intent to end the marital relationship”.  According to the “Chief”, this means at least one of the spouses “has the subjective intent to end the marital relationship, which intent is objectively evidenced by words or conduct reflecting that there is a complete and final break in the marriage relationship”.

In making its ruling, the court sided with a different Court of Appeal, the one in the case called Marriage of Norviel , which had also required the parties to live separate and apart. Norviel, which was decided in 2002, was not a unanimous decision; one out of the three justices dissented.  But now we are all on the same page in California, and if an earlier date of separation is important to one of the spouses, he or she needs to consider moving out (or convincing the other spouse to do so).  Otherwise, property rights and spousal support could be dramatically affected; after all, in Davis, the Supreme Court said the Court was off by five full years!

A couple of notes to keep in mind, though.  First, as Norviel itself recognized, while the parties must be living in separate residences to be separated, just because they are, in fact, living in separate residences does not automatically mean that they are separated.  Get that?  Also, the Supreme Court left open the question as to whether parties could be living in separate residences even if they are still living under “the same roof”.  This might be referring to situations where a partition or some sort of divider establishes two homes from what was once one.