Dangers of Remaining Under One Roof While Divorcing

Many couples opt to remain under the same roof while going through the divorce process.  There are several pressing reasons to do so.  In today's economy, it is often a financial decision that causes one parent to move into an extra bedroom, or a guest house on the property, rather than incurring the high cost of a new residence.  Another very legitimate reason, is that the divorcing parents feel that having Mom or Dad still under one roof will limit the impact the divorce will have on the kids and that by having some transitional period, the children will adjust better to the parent's separation.  The reasons outlined above make perfect sense to the family, but have stirred up many issues in family law cases, especially as it relates to how the court will determine the parties' actual Date of Separation, which determination can have giant effects on the parties' division of marital property and support issues.

In the past, understanding the realities of individual families and their needs, California courts rejected a cut and dry approach in determining the date of separation.  Instead they applied a "totality of circumstances" test to look at various factors and make determinations on a case-to-case basis looking at           (1) whether at least one spouse has expressed intent of not resuming the marital relationship, and (2) whether there were objective conduct pointing to a complete and final break of the marriage.  This all changed in 2015 with Marriage of Davis, when the California Supreme Court made a public policy bright-line rule requiring two people to cease living under the same roof in order to be considered living "separate and apart."   This "bright line" cast a big shadow which has presented all sorts of problems and issues of unfairness in the trenches of the family law courts and tossed aside the very real, daily life considerations of those struggling to cope with the economic consequences of largely unplanned-for divorces.  Under Davis, unless you were actually living in  a separate residence, one farther away than a guest house on your property, you are probably not yet considered legally separated and the establishment of the Date of Separation for dividing up community property and determining how long your spousal support obligation/award will continue, will be pushed out until someone actually moves out.

Enter, Senate Bill 1255 to the rescue.  After the sea change in the standard for establishing date of separation, as announced in Davis, the California legislature was quick to act. On February 18, 2016, Senate Bill 1255 was introduced by Senator John Moorlach – a bill to amend sections of the Family Code relating to the determination of date of separation, and “abrogating the decision in In re Marriage of Davis.”  Pursuant to SB 1255, date of separation is determined by the trial court taking into account “all relevant evidence.” The new law goes into effect on January 1, 2017, and its provisions apply retroactively to cases pending on that date. 

On March 3, 2016, the Senate referred the bill to the Senate Committee on the Judiciary. By a vote of 6-0 the bill was passed by committee and on May 5, 2016, the bill was read for the second time. The third reading of the bill occurred on May 9, 2016 – and passed 35-0. It was then ordered to the Assembly, where it was read for the first time on May 10, 2016, and referred to the Assembly Committee on the Judiciary on May 16, 2016.  The bill was there amended on June 1, 2016, and read for the second time in the Assembly and referred back to the committee where it was passed 7-1 on June 9, 2016. 

As stated, SB 1255 will become law on 1/1/2017. It will have retroactive effect on all family law cases pending on that date. Thank God!  It now appears that our Legislature has put the standard for determining Date of Separation back to using a "totality of the circumstances."  Obviously, if you can afford it and you believe it is best for everyone including the kids, by all means, one of you, move out when you are getting divorced.  I tell my clients all the time, that it is one of the most difficult things to go through a divorce while living under the same roof.  Tough on everyone, including the kids.  But if you absolutely can't afford to do so (emotionally, for the kids sake, and financially), then it's best to know that if you wish for your date of separation to be earlier, rather than later, you will have to establish for the court that you were living "separate and apart" while still under one roof.  You will have to show that you no longer took vacations together, no longer ate your meals together, no longer had marital relations with one another, did not celebrate holidays together, didn't buy each other gifts, and no longer acted as if your were still married.  Be prepared.  While SB1255 gives us back our old, and in this author's opinion, much more fair standard, it is still up to the parties and their attorneys to present the evidence to back up what "he said/she said."