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May 02 Attorney Articles

Memo To Couples – If You’re Planning To Divorce, Say And Act So

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Divorce proceedings are difficult matters. That’s not new, but recent changes in the law may be of some guidance to those spouses contemplating a divorce.

Until recently, Family Code Section 771 stated that earnings and accumulations of a spouse while living “separate and apart” are the separate property of the earning spouse. However, to be living “separate and apart” was never defined by the statute. Instead, divorcing couples who disagreed on the date of their separation litigated the issue in court.

In 2015, the California Supreme Court in Marriage of Davis (2015) 61 Cal.4th 846 attempted to provide those litigants some guidance by holding that spouses are considered to be living “separate and apart” when one spouse moves out of the home. That meant that, until someone moves out, earnings accumulated, and debts incurred, by either spouse are community property.

Pretty simple, right? Wrong. While the Supreme Court’s bright-line rule is great in theory, it fails in application. Just because one person decides to leave, that doesn’t mean that he or she wants to divorce. Conversely, just because a spouse decides to stay, that doesn’t mean that he or she has any intention of continuing the marriage. In fact, more often than not, spouses remain in that “it’s complicated” stage before either spouse, or both spouses, finally decide that “it’s over” and affirmative steps are taken to end the martial relationship. As such, family law practitioners and advocates from all over the State called on the legislature to immediately address the “bad law” created by the Davis decision.

In just one year, the State Legislature abrogated Davis by enacting Family Code section 70. Pursuant to Family Code section 70, a married couple’s date of separation is now defined as “the date that a complete and final break in the marital relationship has occurred, as evidenced by both…” (1) an expression by one spouse to the other of his or her intent to end the marriage; and, (2) the conduct of that spouse consistent with his or her intent to end the marriage. All “relevant evidence” must be considered by a Court deciding the issue. This latest provision went into effect on January 1 of this year.

The family court, once again, has broad discretion to consider “all relevant evidence” when determining the date of separation. Announcing to a spouse in a heated argument “I’m leaving this marriage,” without more, will not suffice. Actions of the married couple will play as much in the legal decision than the words that they choose to express to the other.

Regardless of the circumstances, determining the date of separation may become a challenge for family law attorneys and married couples who seek to facilitate an amicable division of assets (especially with respect to those spouses with “one foot in and one foot out” of the marriage). Even after a petition for dissolution of marriage or legal separation is filed, it is very important that clients are advised of the consequences of their words and actions towards their spouse before, and during, the process of divorce. A spouse’s expression to the other of his or her intent to divorce is not sufficient to end the marriage for purposes of asset division unless his or her conduct is consistent with that declaration. Conversely, a spouse’s conduct consistent with his or her intent to end the marriage does not provide a “final break in the marriage” until he or she communicates to the other their desire to end the marriage for good. Doing otherwise will only draw into question the actual date of separation which impacts not only the division of assets and debts but also other very important issues such as support and the determination of the marital standard of living.

Gerissa Conforti

About The Author:
Gerissa Conforti is a family law attorney with Higgs Fletcher & Mack whose expertise includes litigating high-asset, complex family law matters concerning property division, child and spousal support, breaches of fiduciary duty, and attorney’s fees. Always striving for fairness and preserving the marital estate, she works with clients of diverse backgrounds and socio-economic status. Ms. Conforti can be reached at