So, you think you have “Separated” legally from your spouse? Marriage of Davis; a Game Changer.

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IMPORTANT UPDATE: The case cited here was later superseded by a legislative measure. Governor Brown signed SB 1255 on July 25, 2016 which became effective as law on January 1, 2017. The law overturns a controversial decision by the California Supreme Court in 2015 which re-set the date of separation in family law. Below blog post was written on November 3, 2015. The “Davis” matter is no longer the current law in California concerning “Date of Separation” for Dissolution of Marriage (Divorce) purposes. It remains here only as a historical note and review, and you should consult current source and an attorney for present applicable law to this issue under California law.


In July of 2015, the Supreme Court of California redefined how family law attorneys and their clients understood the term “Date of Separation” and when a marital relationship ends. Before this time, I would have advised a prospective client that the subjective decision made by one of the two parties in a marriage, if shown, would be adequate to indicate a date of separation. It happens often that a couple believe although they both still live under the same roof, they are legally separated; either one or both parties may believe they are legally separated while living together. In these instances the issue of Date of Separation caused much controversy before the Davis ruling. This is significant because as of a determined Date of Separation any earnings by each party would have been their separate property as well as any property gained. Of course, this was a point of contention and a litigation nightmare if the two sides had a significant upside or downside by accepting the other party’s claim. Therefore, a bright line rule in that sense would be a welcome development, but is it really that clear of a Red Line?

in Davis, it seems unambiguous that the California Supreme Court ruled Married couples going through a divorce are not considered legally separated before one of them moves out of the shared residence and it rejected arguments that in divorce cases other factors should play a part in division of income and property. The decision was a unanimous one. It does seem like a “bright-line rule,” and it makes the physical separation and having individual residences a requirement when a marriage is claimed to have broken up by either party.

Chief Justice Tani Cantil-Sakauye wrote, “A bright-line rule … promotes fairness by providing a measure of predictability to the parties and their attorney, as well as clear guidance to judges,”  and in closing lines she provided, “We conclude that living in separate residences?is an indispensable threshold requirement? (Norviel, supra, 102 Cal.App.4th at p.1162) for a finding that spouses are ?living separate and apart? for purposes of section 771(a). This interpretation of the statutory language aligns with the common understanding of the words, the statutory history of the provision, and legitimate public policy concerns…Because the Court of Appeal rejected such a requirement as a matter of statutory construction, it erred as a matter of law.”

It seems rather clear. However, time will tell if this new red-line is tested any time soon again.

For those of you who prefer media articles to legal scholarly sources, here is one to start from, and with the great impact Davis has, there have been and will be many more to sources that will discuss it: