MCLE courses

California Family Law Report



Case of the Month (from CFLR Monthly)

September 2015

Justices say that legislative history and public policy support their decision . . .


In reversal, California Supreme Court holds that for purposes of DOS, parties must be living in separate residences before trial court can find that they are living separate and apart; living separate and apart means spouses live in separate residences and at least one of them has subjective intent to end the marital relationship and has engaged in conduct reflecting complete and final break


In re Marriage of Davis

(July 20, 2015)

California Supreme Court S215050 61 Cal.4 th 846, 189 Cal.Rptr.3d 835, 2015 FA 1699, per Cantil-Sakauye, CJ (Werdegar, Chin, Corrigan, Liu, Cuellar, Kruger, JJ, concurring; Liu and Werdegar, JJ, concurring separately). First District Court of Appeal: reversed. For appellant: Stephanie Finelli, (916) 443-2144. For respondent: Lilia Duchrow, (213) 489-0028. CFLP §J.92.


Keith and Sheryl Davis were married in June 1993. Their two children were born in August 1995 and November 1999 respectively. During their marriage, the couple maintained a joint checking account which Sheryl managed and to which Keith contributed $3,200 per month. In 2001, he opened a separate bank account for his business expenses. Two years later, she reactivated a separate bank account to use for her business expenses and from which she paid personal expenses. By that time, the couple was no longer sharing a bedroom and were living essentially separate lives. They kept up appearances for the children’s sake, continued to live in the family home, but were together only for the children’s activities and family vacations. One point of contention was Keith’s contribution to the family living expenses, which Sheryl thought should have increased when his earnings increased. On June 1. 2006, Sheryl told Keith that “she was ‘through’ with the marriage.” She presented him with a financial ledger detailing their joint household expenses and asked him to contribute equally to those and the children’s expenses. She proposed that she and Keith would each pay their own expenses, and she took Keith off of her credit cards. In July 2006, Sheryl got a full-time job that paid her substantially more money.


After June 2006, Sheryl and Keith continued to live in the family home. Sheryl kept her personal things there, received mail and phone calls, and did not change her address on her driver’s license. She often traveled for her new job, but when she was home, she prepared meals. She and Keith kept using their joint checking account. They also took vacations with the kids and celebrated special occasions as a family, but took no trips as a couple.


On December 30, 2008, Sheryl filed for divorce, listing the date of separation as June 1, 2006. In his response, Keith pegged the DOS as January 2, 2009. However, after Sheryl moved out of the family home in July 2011, he amended his response to list July 1, 2011, as the DOS. The trial court bifurcated the issue of the DOS and held a trial, after which it found that the DOS was June 1, 2006. On appeal, the First District declined to follow In re Marriage of Norviel (2002) 102 Cal.App.4 th 1152, 126 Cal.Rptr.2d 148, 2002 CFLR 9148, 2002 FA 1068, which held that living physically apart is a threshold requirement for the DOS, and affirmed the trial court.


The California Supreme Court granted review and reversed the First District.


Plainly speaking . . .
Keith contended that the justices should adopt a bright-line rule that the parties must live in separate residences in order to be considered as living separate and apart. Sheryl urged the high court to decide the date of separation based on the totality of the circumstances, and conduct by the parties that evidences a complete and final intent to part ways with no plan to resume the marital relationship, whether or not they are living in the same residence. Each contended that the other’s proposed rule would be “unworkable and would lead to harsh results.” The justices noted that Fam C §771(a) provides that the earnings and accumulations of a spouse are the separate property of that spouse while he or she is living separate and apart from the other spouse. When they focused on the plain meaning of the phrase “living separate and apart,” they found that Black’s Law Dictionary defines the phrase as “spouses ‘ residing in different places and having no intention of resuming marital relations’ ” in its 7 th edition and as “ ‘ living away from each other , along with at least one spouse’s intent to dissolve the marriage’ ” in its 10 th edition. (Emphasis added in opinion.) Moreover, the panel continued, the commonly understood plain meaning of “living separate and apart” requires the parties to live in separate residences. However, the justices continued, the phrase might also be interpreted as the spouses’ living separate lives with the intent to terminate the marital relationship, with separate residences being only one factor in determining whether that was so.


Some things changed, some stayed the same . . .
In order to explore the validity of the approach that Sheryl was advocating, the justices looked at the legislative history of Fam C §771(a). They noted that the earliest versions of the statute were intended to protect wives at a time when husbands had control over their finances by providing that their earnings and accumulations while living separate and apart from their husbands were their separate property. This presumed that the parties were living in separate residences. Subsequent versions of the statute regarding post-separation earnings and accumulations reflected statutory changes involving each spouse’s control over community and separate property, but none specifically repudiated the separate residence requirement for living separate and apart. However, the panel continued, case law dealing with the date of separation began to focus on the intent of the parties as to the finality of a break in the marital relationship and their conduct reflecting that break, and less on whether the spouses had separate residences. Accordingly, in cases such as In re Marriage of Marsden (1982) 130 Cal.App.3d 426, 181 Cal.Rptr.910, 1982 CFLR 1934, 1982 FA 1, and In re Marriage of Umphrey (1990) 218 Cal.App.3d 647, 267 Cal.Rptr.218, 1990 CFLR 4315, 1990 FA 418, the parties lived in separate residences, but the appellate courts determined the date of separation by considering all of the evidence, including their sexual and marital relationships, in order to determine whether a final break had occurred. The justices here, however, did not consider that shift in focus to signal an end to the requirement of separate residences. Instead, the panel found that they indicated that “both separate residences and demonstrated intent are necessary.”


Another look at Norviel . . .
The justices then focused on In re Marriage of Norviel , with which the First District had disagreed. In that case, they explained, the majority had acknowledged case law establishing that parties may live physically apart without being separated, but concluded that “the reverse is not also true.” Those justices held that “ ‘living apart physically is an indispensable threshold requirement to separation, whether or not it is sufficient, by itself, to establish separation.’ ” The panel found it significant that there was no response to the Norviel majority’s determination as being “a sudden new rule that was legislatively unintended or unworkable,” and no attorneys jumped on a bandwagon promoting an opposing view. Moreover, the justices pointed out, the Legislature has not acted to amend Fam C §771(a) to make it clear that there was no threshold requirement of separate residences, as held in Norviel . Summing up, the justices held that “living separate and apart” means that “the spouses are living in separate residences and at least one of them 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.” Concluding that this interpretation is supported by both legislative history and public policy, the panel reversed the First District and remanded for further proceedings in line with this opinion.


On the other hand . . .
In a separate concurrence, Justice Liu, joined by Justice Werdegar, pointed out that times and statutes have changed since the early days when protecting vulnerable wives was an essential goal, and believes that there might be circumstances in which spouses could establish separate residences under one roof.





In this case, the Supremes give us a bright-line rule for determining the date of separation, sort of. They tell us that the DOS cannot occur unless the parties are living in separate residences and their conduct shows that at least one of them wants to end the marriage, which is defunct. If the justices had ended the discussion there, their holding would look more like a bright-line rule, but they didn’t. In a footnote, they say that they “expressly reserve the question” of whether spouses could establish that they had separate residences and were living separate and apart “even though they continued to literally share one roof.” The concurring opinion echoes this sentiment and expands on it by asserting that the physical separation contemplated by the Legislature in 1870 does not have to be the same today. The concurring justices agree that the majority’s definition of the DOS is in keeping with the most natural meaning of the phrase “living separate and apart” and will bring a certain clarity and ease of application to that issue that had arguably been lacking. However, the concurring justices emphasize that neither the Legislature nor the main opinion “has foreclosed the possibility” the divorcing parties may be considered to have reached the date of separation while living under the same roof. As long as that is a possibility, the bright-line rule is dimmed just a little. Meanwhile, enterprising family law attorneys will be dreaming up scenarios in which that might occur, i.e. the parties live in such a big house that they can reside in separate wings with separate entrances without ever seeing each other (as happened in a celebrity disso from long ago); one spouse could move to a guest house on the estate, but keep the same address; or, the parties live in a hotel that they own and operate and simply keep separate rooms. The possibilities are endless.



Turning to another topic, the requirement of separate residences comes up in tax cases when the issue is whether support payments can qualify as alimony that is deductible to the payor and includible to the recipient. Such a payment cannot qualify if the parties live in the same residence when the payments are made.



Welcome to CFLR

Welcome to CFLR,
a division of
Thomson Reuters











CFLR DissoMaster Suite 2015-1

What's New in the 2015 Suite update?

Current DissoMaster subscribers:
click here to install the 2015 CFLR Suite update


To purchase DissoMaster call The Rutter Group or visit our product page to purchase online.



Find out what's new from CFLR!


Subscribe to our free monthly e-newsletter and you will be e-mailed information on our publications, product specials and upcoming continuing legal education programs.


Subscribe now to our monthly e-newsletter!



Now Enrolling!!!


2015 Basic Training: Family Law


2015 Family Law Experts Series: Mediation


2016 Family Law Refresher Course



Free DissoMaster Training
(800) 328-0109


Call to make an appointment for interactive  telephone training.



We offer discounted prices on most of our publications and software to judicial and nonprofit entities, as well as to attendees of our MCLE courses




Advanced Family Law Course Materials


Family Law Refresher Course Login


Click here for more MCLE attendee support.




First Alert™ Login — Searchable archive and the latest Citalerter™ for subscribers.

© 2015 The  Rutter Group • A Division of Thomson Reuters • All rights reserved.
conditions of use | about | contact | shop for West legal products