A. Quentin: I am glad you asked this question, because I've been meaning
to Blog an important family law appellate decision that was published
several months ago -
Marriage of Davis (10/15/13) 220 Cal.App.4th 1109. Your wife is right about one thing: If
she can establish that yours was a long term marriage within the meaning of
Family Code section 4336 , your potential exposure for paying
long term spousal support is increased. She is also correct that if a later date of separation is
found to apply, whatever was accumulated prior to that date is community
property and you owe her one-half of it. However, you don't provide
enough background facts for me to express a meaningful opinion as to the
outcome of your situation. So, instead, I'll discuss
Marriage of Davis in an effort to help you evaluate where you are or may find yourself.
The bottom line lesson is, however, that the outcome of date of separation
disputes turn upon their facts. And, upon how a family court trial judge
evaluates them. A trial court's decision is unlikely to be reversed.
Still, as I discuss at the end of this Blog, there may be a very positive
change in the offing to the date of separation wars.
Davis creates huge and positive opportunities for reforming the unrealistic
biases in the law about how people behave (or should behave), and why,
in the early throes of the end of intimacy - often long before either
party consults a lawyer, or actually invokes the government sponsored
Marriage of Davis (2013) 220 Cal.App.4th 1109 - What Is Our Date of Separation?
Husband and Wife married in June, 1993. They have two children, born in
1995 and 1999. According to the appellate decision, they stopped being
intimate in 1999, shortly after the second child was conceived and they
didn't go out on "dates" either. The parties made different
claims as to when they stopped sharing a bedroom - Husband said this occurred
in 2001, and Wife testified this occurred in 2004.
They shared a joint bank account from which they paid joint expenses. In
2001, Husband was earning approximately $180,000 per year and Wife was
earning $115,000. In 2003 Wife opened a separate bank account to manage
her business funds and allocate money for personal expenses. In January,
2006, Husband accepted a job at Clorox that paid an annual salary of $240,000
($20,000 per month). 9 months later he left that position. During the
time he worked at Clorox, he deposited his earnings into a separate account
he'd opened, while contributing $3,200 monthly to the joint account
for household expenses.
By June, 2006, Wife had been without a job for 6 months and was working
as an independent contractor with average monthly earnings of $3,000 to
$4,000. Wife testified at the bifurcated trial that she was "frustrated"
by H's decision to retain the balance of Clorox earnings for himself,
that she did not know he'd opened a separate account, and that she
was cut off from accessing a Charles Schwab account that they'd opened.
On June 1, 2006, she announced her intent that the marriage was ended.
She also provided him a spreadsheet itemizing the household expenses because
she wanted the parties to equally contribute to running the home and to
the children's expenses, and that each would pay their own.
In July, 2006 (shortly before H quit Clorox) the worm turned. Wife found
salaried employment that paid her $138,000 yearly, or $11,500 per month.
She made arrangements to pay her share of the household expenses into
the joint account, with the balance now going to her own new personal
account. She testified that "as far as I was concerned, the marriage
was done." However, she did not move out; she did not remove her
belongings; and she continued to receive mail and telephone calls at the
home, and cooked meals for the family.
That was the status quo on December 30, 2008, when W filed a dissolution
petition alleging the date of separation to be June 1, 2006. Husband filed
his Response on February 4, 2009, alleging a DOS of January 2, 2009. Wife
remained in the home until July, 2011.
Thereafter, in January, 2012, a four day trial occurred at to the parties'
DOS following an order for bifurcation of that issue. Still evidently
ambivalent about his contentions concerning the date of separation, however,
on March 8, 2012 H amended his Response to allege a new date - July 1,
2011, the day that W moved out of the family residence. On May 2, 2012,
the trial court announced its decision that the DOS was June 1, 2006,
accepting W's position in full. H appealed.
Justice Dondero, writing for the Court of Appeal for the First Appellate
District, Division One (Alameda County), affirmed the trial court decision.
While the decision seems at first blush surprising in light of prior published
case law on the subject, it really isn't. H hurt himself badly by
playing fast and loose with his DOS claims, which seem to have become
a moving target for him (or his attorneys). Essentially, the Court's
decision is that trial court findings on date of separation won't
be overturned in the absence of a manifest abuse of discretion, and the
hands of appellate courts are tied by what is known as the "substantial
evidence rule," i.e., as J. Dondero states "even if we would
have reached a different conclusion based upon the evidence at trial,
we do not reweigh the evidence and will affirm the judgment as to the
date of separation if it is supported by substantial evidence." What
makes the decision interesting, however, is that J. Dondero reviews the
reported DOS decisions in light of the facts presented in this case, and
(sort of) rejects controversial law on the subject thus giving rise to
an exception that will help some parties who can conform their experience
to the facts of this case.
A quick review of the relevant legal principles:
Family Code section 771 , earnings and accumulations (here, evidently W's earnings after H
quit working for Clorox) acquired after the DOS are the separate property
of the earning spouse.
- The legislature has not defined what constitutes the date of separation
in section 771 or elsewhere, leaving this determination to the courts
on the facts of each case.
Long ago an appellate court determined that living separate and apart is
a "condition where the spouses have come to a parting of the ways
and have no present intention of resuming the marital relations and taking
up life together under the same roof."
Makeig v. United Security Bk. & T. Co. (1931) 112 Cal.App. 138, 143 [trial court affirmed].
This DOS definition was amplified in the case of
In re the Marriage of Bagary (1977) 73 Cal.App.3d 444, 448 which described the question as "whether
the parties' conduct evidences a complete and final break in the marital
relationship." [Trial court reversed because no substantial evidence
presented by husband rebutting presumption marriage still intact, even
though he was having extra-marital relations]. This is a a good case to
cite if the other spouse claims a date of separation based upon proof
of other sexual relationships, where she/he is otherwise reaping the domestic
rewards of marriage.
Marriage of von der Nuell (1994) 23 Cal.App.4th 730 blended these two definitions, as follows: "[B]ecause
rifts between spouses may be followed by long periods of reconciliation,
and the intentions of the parties may change from one day to the next,
Bagary to hold legal separation requires not only a part of the ways with no
present intention of resuming marital relations, but also, more importantly,
conduct evidencing a complete and final break in the marital relationship."
[Trial court reversed where the record was "replete with evidence
that during those four years while living apart, the parties continued
to function as an economic unit and retained social, sexual and emotional
Thus, the test arguably includes both subjective and objective components.
In re Marriage of Norviel (2002) 102 Cal.App.4th 1152. The objective component examines whether
there is objection conduct evidencing and support that subjective intent.
[Trial court reversed with instructions on remand that "the parties'
physical separation is a threshold prerequisite to separation" and
"that the parties' other conduct may be considered only to the
extent that it is contemporaneous with the intent to separate."
Norviel has since been the principal (and for many highly controversial) decision
relied upon by attorneys who are opposing separation dates where the parties
continued to live under the same roof. Justice Dondero specifically distinguishes
Norviel in order to reach his conclusion in
Davis, based upon the "substantial evidence" rule. Frankly, we family
law attorneys have been awaiting a decision like this for a long time
- particularly in light of the financial circumstances of many of our
clients who've been forced to endure and live together under for economic
reasons during the Great Recession. The only problem here is that that
reality seems missing from this decision (i.e., there is no evidence that
the parties continued together for primarly financial reasons). However,
as it turns out, there were a host of other facts that supplied the missing
"under the same roof" DOS juice, including Wife's bold(?)
assertion she had every right to continue to reside in their home. For
that reason, however, the impact of this decision may be limited to its
own peculiar facts, which involved a highly credible Wife.
There were additional facts that the trial court considered. Wife's
trial evidence included the following:
- Wife testified that she believed the marriage was over in 2000 but that
she kept up appearances for the sake of the children (failing to meet
the objective component, although she never argued the DOS was in 2000).
- Wife testified that Husband physically assaulted her in October, 2005 and
that that was the "last straw" (subjective). However, because
her son had issues with the local school district she waited until June,
2006, to announce that the marriage was over (objective).
- She decided she would continue to contribute to household expenses, but
at that time developed the spreadsheet itemizing their respective contributions
- and to the children's expenses (subjective/objective). Any other
money belonged to the party who earned it.
- After June 1, 2006, W took H off her credit card and ceased making payments
on his (objective).
W testified she continued to live in the home after June, 2006
because it was her home as much as it was his (applause, applause, applause!), but that she made an effort to keep their
interactions to a minimum. The job she began in July, 2006, was in southern
California and she would go there each week and stay at a hotel from 3
to 5 nights in a row (objective).
- In her mind, she and H were roommates when she was in NorCal, and she kept
up appearances for the sake of the children (subjective). She had an important
smoking gun email that pretty much said exactly that, dated from that
- They had a prepaid trip to Hawaii in 2006, and shared a hotel room but
not a bed. After that, she took the kids on her vacations without H, and
H took them on his trips without W (objective). She never invited H on
trips she took thereafter with the kids (objective). He invited her to
accompany them on her trips, but she declined (objective).
- The parties drove separate cars on back-to-school nights (objective), unless
the children begged her to ride with H (subjective).
- The parties continued to celebrate birthdays and special occasions by going
together with the children (negative - objective).
- She finally moved out in February, 2011 after H had stopped contributed
anything to household expenses because he had "no money."
My read: Wife here was one smart cookie, with darn smart lawyers, but she
was telling the truth! We have to love truth, first and foremost!
This assumption was confirmed by Husband's weak counter-story:
- Nothing changed after June, 2006 - it was 'business as usual'.
- She did in fact announce that she wanted a divorce, but she'd threatened
- He agreed to the ledger system because it was a way to get bills paid,
although he "didn't like it".
- They always had a dysfunctional and abnormal marriage.
- Nothing changed until she moved out.
The outcome therefore, to me, is not surprising. The case distinguishes
the facts that lead to the rulings in other reported cases on DOS, and
if you have a separate date issue I urge you to read the full decision.
The bottom line for Justice Dondero is this part of the ruling: "While
the cases summarized above involved 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 can not be applied to a spouse
who continues to live in the family home but who, in every meaningful
way, has abandoned the marital relationship. In this respect, we disagree
with the bright line drawn by the majority in
I think this is a ground-breaking, and enlightened, case. It implicitly
recognizes that spouses who are actually done with their marriages may
have ongoing financial, property, and child related entanglements that
encourage or force them to continue to interact with each other in a manner
that looks, superficially, as though there has not been a final parting
of the ways. That interaction has been presumed in the earlier reported
separation cases as evidence establishing an emotional ambivalence, or
to infer a desire to reconcile or actual reconciliation, or which could
be interpreted by courts as contradicting their testimony that the marriage
was forever broken. Hence, the length of marriage becomes extended, and
then by operation of the law the community estate is treated as though
it continues to gain an interest in assets acquired thereafter, or it
incurs a liability for debts, and a longer marriage generally extends
the right to receive alimony or spousal support. A trap for the unwary.
You can use
Davis as authority for the proposition that ongoing financial or kid related
interactions do not, of themselves, establish that the parties did not
in fact separate. What is enlightened about it, besides recognizing that
humans don't act in cookie-cutter ways, is that a spouse who behaves
amicably or even responsibly towards the other after break up - possibly
simply because they continue to care for or help them and don't desire
to rip his or her throat out - should not be punished or taxed with additional
family law obligations for behaving like decent human beings. Up to now,
if your didn't act as though you hated your former partner and didn't
cut them out of your life like a cancer and have almost zero interactions
with them, you ran the risk that much greater financial consequences would
flow your way. Unfortunately, many judges who are cynically used to seeing
hateful behavior in their courtrooms may continue to be confused over
what such kindness or respect might really mean. (I am not necessarily
referring to the
Davis spouses, but to some cases we have in our offices where separation date
is an issue only because our clients were foolish enough (?) to continue
to do "nice things" for the other).
Finally, ..., thank you Justice Dondero! Society and government may still
one day evolve to a place where we encourage behaviors in the midst of
divorce that are good, rather than penalizing people for them.
As a matter of public policy, how do we want former intimate partners to
treat each other in the land of relationship-end? This is especially poignant when we consider the negative consequences
to children in reinforcing the notion among parents that they place themselves
in fiscal's harm's way if they hang out too much with the other
parent, especially in the high anxiety, emotion and confusion that surrounds
the initial stages of divorce.
Philosophical digressions aside, folks, remember this - the California
Supreme Court has not decided a DOS case, and this one may be viewed as
being limited to its facts. It is a breath of fresh air, but it is not
"game-over" in the DOS wars! The reversal score card in the
lower appellate courts shows that trial courts will not be automatically affirmed.
Be safe out there and good luck Quentin, I hope this helps you a bit!
Thurman W. Arnold, III, CFLS