The California Supreme Court will decide in the next 90 days whether a couple can be considered separated while living in the same house, but maintaining separate finances and otherwise leading separate lives.
In the case of Sheryl Davis and Xavier Davis, both the trial court and appellate court thought so. These courts agreed with Sheryl that she had separated from Xavier on June 1, 2006, even though she did not move out of their Alameda County home until July 1, 2011.
Sheryl proved that she stayed in the home another five years only for the sake of their children, who were six and ten in June 2006. At the time, Sheryl had told Xavier that the marriage was over and had started a ledger for separate payment of expenses. Though the couple drove separately to back-to-school nights and took mostly separate vacations, Sheryl had planned to stay in the home for the next eight years, which turned into five when Keith physically assaulted her in 2011.
Xavier claimed that, financial ledger aside, the marriage did not change after June 2006: It remained “abnormal and dysfunctional,” as he claimed it had always been.
In October 2014, Justice Robert L. Dondero upheld the trial court’s decision for the First Appellate District, after finding substantial evidence to support the lower court’s ruling that Sheryl and Xavier had separated on Sheryl’s earlier date. Of the cases on which the trial court had relied, Justice Dondero wrote: “(While these cases) involve spouses who had already moved out of the family home while continuing to maintain ongoing financial and social relations, thereby evidencing a lack of true marital separation, we see no reason why the inverse rationale cannot be applied to a spouse who continues to live in the family home but who, in every meaningful way, has abandoned the marital relationship.”
While determined by the facts, a divorcing couple’s date of separation is a legally significant issue. Generally speaking, it is the date after which each person’s income, expenses, and newly acquired assets and debts are considered their own, not part of the married unit. The date of separation in a divorce case is when the divorcing couple is determined to have separated, and is entirely unrelated to a Judgment of legal separation, which a couple can acquire if they wish to separate by law but decide not to divorce.
Before the Davis case came along, a date of separation required one or both parties’ intent to leave the marriage and actions to back it up, and this case does not change that. It asks only whether, under the circumstances of this family’s subsequent living situation and financial conduct, they could have been considered separated when Sheryl declared the marriage over.
In his February 4, 2009 Response to Sheryl’s divorce Petition, Xavier declared January 2, 2009 as the date of separation. At trial, he changed the date to July 1, 2011. The trial court noted that there are no cases to support Xavier’s position that a couple can remain unseparated even after one party has filed the Response in the divorce case.
In October 2014, the appellate court affirmed the trial court. The California Supreme Court heard arguments Tuesday and will decide whether to also affirm or to reverse these decisions by mid-summer.
Justice Dondero was joined by Acting Presiding Justice Sandra L. Margulies and Justice Patrick K. Sepulveda.
Case: Marriage of Davis, No. A136858.