IRMO Davis

For those going through divorce, the 2015 Davis case is likely a familiar one. In In Re Marriage of Davis the court addressed the question of whether couples who still live together (but consider themselves “separated”) are considered “separate and apart” for purposes of determining the date of separation. While in the days of past such an arrangement would seem out of the ordinary, in an economy (particularly in the Bay Area) where the cost of living is sky high, this sort of living arrangement has become increasingly common. For some couples, continuing to live together despite being separated is the only viable option. The reality is that some people simply do not have the ability to afford to make the sudden and important decision to start living on their own immediately after starting the divorce process. The question then becomes, do couples who have to live together due to financial concerns, qualify as being “separate and apart”? The answer under Davis is no.

The decision in Davis has caused many divorcing couples living together (although self-labeled as “separated”) to ask what circumstances do allow them to qualify as separated for purposes of determining the very important “date of separation.” In analyzing Davis, there are no specific factors that determine when couples can be separated but still live together. However, Davis does acknowledge that there may be special circumstances that allow for separation despite continued cohabitation.

In discussing these special circumstances, Davis addresses the question of what circumstances do not qualify. The following situations have been deemed by Davis as insufficient for purposes of allowing a couple to live together but still be considered separated:

• No longer having sexual relations
• No longer sharing the same bedroom
• Continuing the relationship for the sake of the children
• Keeping finances separate
• Keeping expenses separate
• Taking separate vacations
• Abandoning the marital relationship in every meaningful way
• Cooperating with one another only as needed to maintain the household

For many, the circumstances discussed above can be both frustrating and confusing. The majority of divorcing couples would likely argue that “abandoning the marital relationship in every meaningful way” certainly would qualify as an indicator that estranged spouses are separated. Prior to Davis, there was no bright line rule that stated that parties had to live under separate roofs in order for there to be a true date of separation. Now, under Davis the rule is somewhat clear: you must live separately to be separated, but there may be circumstances to qualify you and your spouse as the exception to the rule. This means that, as a general matter, for the couple who lives together, if one spouse incurs a debt while they still live together, both spouses may be liable. Similarly, income earned while still living together may still be classified as community. In sum, Davis has left many divorcing couples in separation limbo, with many unanswered questions.

Here at Mello & Pickering, LLP we can help you navigate through the various stages of your divorce. With 40 years combined experience, we know how to assist clients in assessing their claims and put together a plan that will help ensure that their divorce goes as smoothly as possible.