Major Decision on Date of Separation

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separatedUntil this week couples going through divorce could be considered separated even though they continued to live in the same home together.  No More… The California Supreme Court has issued its long awaited decision in the case of In re the Marriage of Davis. Bringing clarity to the often confusing question of when a couple is separated for divorce. Even though the unanimous decision of the court, as written by Chief Justice Tani Gorre Cantil-Sakauye, is long at 26 pages the holding of the court is quite simple:

To be separated the couple must be “living separate and apart.” Living separate and apart requires separate residences and accompanying demonstrated 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.

If you and your spouse are living in the same house, you ain’t separated.

Why did the controlling opinion require 26 pages? It is my opinion that the Court was exercising judicial restraint and addressing the very limited question of what it means to be living “separate and apart” as mandated by the California Family Code (Family Code Section 771 to be specific). The length that the court goes to to give a plain language definition and and the history of the statutory language would suggest that the Court is inviting the California Legislature to rewrite the statute so that the bright line definition that now controls in California can be changed. I would call it judicial politicking in lieu of judicial activism.

Click here to read the Davis S215050 opinion.

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