The CA. Supreme Court Interprets “Living Separate and Apart” For Purpose Of Determining “Date of Separation”
On July 20, 2015, the California Supreme court made a ruling in the case of “Marriage of Davis” that is now having a sweeping effect on many parties currently involved in a dissolution (divorce) action in California. When a party files a Petition for Dissolution or a Response to the Petition, the date of separation is generally listed. This is a very important factor. Many parties determine this to mean when the emotional, sexual, etc. relationship is over and they are no longer holding themselves out to friends, family, etc. as being a “married couple? In fact, in today’s economy, many couples cannot afford to live apart and simply commence living in separate rooms. Some parties decide to “separate” and continue to reside under the same roof due to the embarrassment of friends and family finding out the relationship is over.
Why is the “date of separation” so important? Family Code section 760 provides that all property acquired by the spouses during the marriage is community property -except as otherwise provided by statute. One statute is Family Code section 771, subdivision (a), which provides that – “the earnings and accumulations of a spouse . . . , while living separate and apart from the other spouse, are the separate property of the spouse.”
However, in the Davis case, the Supreme Court ruled that parties continuing to live under the same roof were NOT “living separate and apart.” within the meaning of Family Code Section 771. What does this mean? This means that if the parties are still living under the same roof, the earnings, debts, acquired assets of each still are considered COMMUNITY earnings, debts, and assets with each party being legally entitled to 50% of the asset and responsible for 50% of that debt. Of course there are certain circumstances that provide exceptions to this rule of law.
Now, many attorneys/parties are filing Amended Petitions with a new date of separation-especially if beneficial to that party to have the community interest in an asset continue (such as an interest in the other party’s earnings, retirement plan, 401k, pension plan- to name a few). Some new Petitions being filed simply have TBD placed for date of separation.
Because this has caused such turmoil in the legal community, the legislature is working feverishly in an attempt to revise the affected statutes to “remedy” this wrong. Hopefully we will see some changes soon from our legislature to correct this huge problem.
If you, or anyone you know, has been affected by this recent court ruling, feel free to contact the LAW OFFICE OF JEFFREY D. STEARMAN in Fullerton, CA. at (714) 871-7778 for a FREE initial telephonic CONSULTATION.
Contact the Law Office of Jeffrey D. Stearman in Fullerton, Orange County, CA. for legal assistance.
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Disclaimer: The information contained in this blog is provided for informational purposes only and should not be construed as legal advice on any subject matter.
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