The California Supreme Court Rules on Date of Separation

On July 20, 2015, the California Supreme Court’s Chief Justice Tani Cantil-Sakauye shared in a unanimous decision that the definition of “legal separation” is the date you and your spouse actually live in separate residences. This is huge. Many couples in California, either for the sake of the children, or the sake of financial planning, agree to separate living conditions in the same household/residence.
Remember the anecdotes about a separated couple “drawing a white line in the middle of the house“, and living on their separate sides? That is no longer an effective separation. One or the other spouse, according to In Re Marriage of Davis (2015) Case Number S215050, only can consider their income and retirement earnings separate “while living separate and apart from the other spouse.” Sharing a residence but having “separate lives“, in the eyes of the Court, means you are not separated.
In a divorce proceeding, one of the most important factors in the division of assets, including retirement plans, is the date of separation. Many trial court issues involve both parties agreeing, or arguing, what is the true date of separation. For example, one party might claim it was the evening the parties sat at the dining room table, and told each other “it’s over”, and a spouse starting sleeping in another bedroom. One year later in the courtroom, the other spouse would claim “No, my spouse and I continued to share a bedroom on occasion, and we held ourselves to our children and/or neighbors as a married couple”, thus claiming the date of separation is one year later.
The California Supreme Court just made that line of separation, so to speak, much easier: “living separate and apart.” The Court made it clear that separate and apart is NOT sharing a house on separate floors. Every lower court in California may be breathing easier today, knowing there is a clear standard of separation today.