A major consideration for “separated” spouses is the final break in the marriage. “Separation” occurs only when the parties have come to a parting of the ways with no present intent to resume their marriage and their conduct evinces a complete and final break in the marital relationship. Sometimes, however, one party thinks or both parties think that they have separated, where a court might find otherwise.

Potential negative effects of failing to clarify a date of separation include an extension of the periods (1) for which a spouse could ultimately be liable for spousal support and (2) during which they could be considered to still be sharing finances (both income and debts) with the other spouse.

An obvious way to clarify these murky situations would be for one of the spouses to move out of the family residence and establish his or her own separate one.

Immediately re-locating, though, could negatively impact the “move-out spouse’s” current and future custody position. If the children’s “home base” is the family residence, then it could be a risky move, literally and figuratively.

Child support concerns would also be linked, as the calculations are largely based on timeshare with the children.

Further, the recent economic downturn has made it tougher than ever to create two households from one.

Thus, move-outs should be carefully considered. This can take time.

A generally unpopular Court of Appeal case, In re Marriage of Norviel (2002) 102 Cal.App.4th 1152, held by a vote of 2-1 that “separation” in this context nonetheless requires a permanent physical separation. It noted, “[t]ypically, that would entail each spouse taking up residence at a different address.” The issue of whether cohabitating spouses could still be considered “separated” for purposes of the “final date of separation” was thus unclear.

Fortunately, the First District, in In re Marriage of Davis (2013) 220 Cal.App.4th 1109 (petition for review pending), recently upheld a trial court’s ruling that Norviel is not dispositive. Davis holds that, where the evidence demonstrates “unambiguous, objectively ascertainable conduct amounting to a physical separation under the same roof,” even co-habiting spouses can accomplish and maintain “separation.”

Some of the ways parties can do that, even if they might continue to reside “under the same roof,” would be to refrain from:


  1. Maintaining any unnecessary contact with the other spouse.
  2. Using the same address for mail (get separate Post Office box instead).
  3. Sending any flowers, letters or cards.
  4.  Saying “I love you” or similar sentiments.
  5. Filing joint income tax returns without first clarifying in writing that the filing of such a return does not constitute a waiver of rights.
  6. Saying or making it look like that they are not separated.
  7. Maintaining joint checking accounts or credit cards.
  8. Expressing physical affection for the other spouse.
  9. Vacationing with the other spouse.
  10. Celebrating holidays with the other spouse.

While this might sound cold-hearted, there could be serious legal and financial consequences for failing to maintain a clear date of separation. Should they wish, co-habiting parties can more “safely” re-establish a closer relationship after their case is finally over.

Of course, parties, with or without children, eventually move on to new lives in separate residences. Thankfully, Davis now provides some time and space for them to accomplish this in a realistic and thoughtful manner, without spouse having to prematurely rush out the door to protect the date of  separation.

Greg Herring is a State Bar Certified Specialist in family law and is a partner with Ferguson Case Orr Paterson LLP. He is the current President o f t h e Sout h e r n  California Chapter of the American Academy of Matrimonial Lawyers. CITATIONS Editor Wendy Lascher represented the successful respondent in Davis.

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