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California Supreme Court: Can a Couple Living in the Same Home Be Considered "Living Separate and Apart"?

California Supreme Court: Can a Couple Living in the Same Home Be Considered “Living Separate and Apart”?


Couples who are separated and making their way toward divorce sometimes continue to live in the same home. It is not too hard to imagine reasons why this would happen. Finances are a key consideration.


Many couples struggle to make ends meet keeping just one household. A sudden need to maintain two (on the same amount of money) can be pretty daunting. Children are a second reason that separating couples often continue to live in the same home. Divorce is hard on children, and sometimes a more gradual approach to the physical separation of the parents can be in their best interest.


The problem with continuing to live in the same house after deciding to “separate” is that the separation date plays a huge role in the division of marital assets when a divorce actually occurs. Once a legally recognized separation takes place, the parties begin accumulating separate assets to which the other party has no legal right. This is true whether there is a legal separation granted by the court or whether the parties simply separate on their own.


Continuing to live in the same home confounds the question of whether the couple is separated. A recent case decided by the California Supreme Court answered this question, at least for the particular circumstances of that case. In Marriage of Davis, the Court concluded that the couple were not living separate and apart until the wife moved out of the house. Initially, both parties stated that they were living separate and apart even while still in the house together, but later the husband claimed the separation did not occur until his wife moved out.


Some may view the Court’s decision as establishing a bright line rule that continuing to live in the same house defeats the notion of living separate and apart. This is not the case. The Court determined that in this set of circumstances, the couple was not considered as living separate and apart while under the same roof. It left open the door for a subsequent determination that a couple could show that they “had established separate residences¬† . . . even though they continued to literally share one roof.”


If you are contemplating divorce, you will need advice early in the process, especially on the issue of living separate and apart. Judy L. Burger is an aggressive, knowledgeable lawyer who has extensive experience in high conflict divorces in California. Contact her today at (415) 293-8314 to discuss your case.

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