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.
A putative marriage is one where the couple intended to enter into a valid marriage, but for one reason or another, the marriage is legally void in fact. There may have been a legal barrier to marriage, such as one of the parties was already married to someone else, or unbeknownst to the couple, the official who performed the marriage ceremony was not legally authorized to do so.
Sections 2250 – 2255 of the California Family Code explains a putative spouse’s rights when the couple breaks up. Rather than a petition for divorce, one or both parties must file a petition entitled “In re the marriage of ____ and ____” and the petition must state that it is a petition for a judgment of nullity of the marriage.
Once the marriage is found void or voidable, then the Court may proceed to divide property, award spousal support, and award custody of the children in a manner substantially similar to standard divorce proceedings as though the couple were legally married.
At the 
Getting divorced is seldom a walk in the park. Nobody gets married planning to go through a divorce sometime down the road. But, life happens and people sometimes change or grow in different directions. As family law attorneys, we see the effects of such changes every day. The most common phrase we hear is “He (or she) is not the same person I married.”
If divorce seems to be looming on the horizon, this is not the time to ignore the problem and hope it goes away. Face the issue head on and start planning to ensure the best outcome possible.
It goes without saying that choosing the right divorce lawyer is the first critical step in a divorce. A consultation does not necessarily mean a commitment, but a qualified, experienced California divorce lawyer can answer questions you didn’t even know to ask. A consultation is well worth the cost if it can save you thousands of dollars in costly mistakes.
For those who plan to seek custody of the children, it is not too early to start a journal. Chronologically record specific events that relate to your spouse’s interaction and relationship with the children. Your attorney can help you distinguish which events are more important than others.
Finally, put your accountant’s hat on and list all of the assets and debts you believe should (or shouldn’t) be included in the marital pie.
Instead of thinking of divorce as an ending, think of it as a beginning. You will have a chance to spend time thinking, planning, and dreaming. Better relationships can be built with your children and extended family. You will have a fresh opportunity to become comfortable with who you are rather than what someone else wants you to be. And when you’re ready, you will have a chance to start over.
