Marriage of Davis
61 Cal. 4th 846, 352 P.3d 401 (2015)
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Rule of Law:
For the purpose of determining when property is classified as separate versus community property, the phrase 'living separate and apart' under California Family Code section 771(a) requires that spouses live in separate residences.
Facts:
- Keith Xavier Davis (husband) and Sheryl Jones Davis (wife) were married in 1993.
- The couple stopped being sexually intimate in 1999 and began sleeping in separate bedrooms sometime between 2001 and 2004.
- Throughout the 2000s, the parties began separating their finances, opening individual bank accounts, doing their own laundry, preparing their own meals, and taking separate vacations, although they still maintained a joint household bank account.
- On June 1, 2006, wife told husband she was 'through' with the marriage and presented him with a financial ledger to formally separate their expenses, believing they were now acting as 'roommates'.
- After June 1, 2006, the parties continued to reside in the same marital home.
- The couple continued to celebrate holidays and birthdays as a family and took a family vacation to Hawaii in August 2006.
- Wife did not physically move out of the marital home until July 2011, over two years after she had filed for divorce.
Procedural Posture:
- Sheryl Jones Davis (wife) filed a petition for dissolution of marriage against Keith Xavier Davis (husband) in the trial court.
- The trial court held a trial on the contested issue of the date of separation and found it to be June 1, 2006, when the wife subjectively decided the marriage was over, despite the parties continuing to cohabitate.
- Husband, as appellant, appealed the trial court's finding to the Court of Appeal.
- The Court of Appeal affirmed the trial court's decision, holding that separate residences were not a prerequisite for separation.
- The California Supreme Court granted review to resolve a conflict among the appellate courts on this issue.
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Issue:
Does the phrase 'living separate and apart' under Family Code section 771(a) require spouses to live in separate residences for their earnings and accumulations to be considered separate property?
Opinions:
Majority - Cantil-Sakauye, C. J.
Yes. Spouses must live in separate residences to be considered 'living separate and apart' under Family Code section 771(a). The court reasoned that the plain meaning of the words 'separate and apart' implies physical distance and different locations. This interpretation is supported by the statute's legislative history, which dates back to an 1870 law designed to protect wives who had physically separated from their husbands and needed to establish 'her own place of residence'. While prior case law established that physical separation alone is not sufficient without an intent to end the marriage, those cases never contemplated that separation could occur without separate residences. Adopting this bright-line rule provides predictability for litigants and courts and prevents manipulation by requiring an objective act of physical separation.
Concurring - Liu, J.
Yes. The concurring opinion agrees with the majority's holding that 'living separate and apart' requires spouses to live in separate residences. However, it emphasizes that the purpose of the statute has evolved since its enactment in 1870. The original law was a narrow exception to protect women in a male-dominated property system, whereas the modern gender-neutral statute's purpose is to recognize when a marriage has effectively, though not formally, ended. While practical considerations support the separate-residences rule, the concurrence suggests that courts should remain open to the possibility that spouses could demonstrate an 'unambiguous, objectively ascertainable conduct amounting to a physical separation under the same roof' in a future case.
Analysis:
This decision establishes a clear, bright-line rule for determining the date of separation in California marital dissolutions, resolving a conflict among lower courts. By making separate physical residences a mandatory prerequisite, the court prioritizes objectivity and predictability over a more subjective, totality-of-the-circumstances approach. This ruling provides clear guidance for family law practitioners but may impose financial burdens on spouses who cannot afford to maintain separate households, forcing them to remain 'married' for property accumulation purposes despite a subjective belief that their relationship is over. The holding solidifies the legal standard that intent to end a marriage must be accompanied by the objective act of moving out.
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