Puja Sachdev | January 31, 2024 | Divorce
A couple must live “separate and apart” to be legally separated. Unfortunately, it may be too costly for couples to live in separate homes during separation. They may need to continue sharing living expenses so they can meet their basic needs.
Importantly, a couple continues to accumulate marital assets unless they are living “separate and apart.” Marital assets are subject to California community property laws during a divorce.
Therefore, what can a couple do if they want a legal separation but don’t move out of their home? Assuming they want to stop accumulating marital assets, they can explore in-home separation as a solution to the problem.
Does California Recognize In-Home Separation for the Purposes of Legal Separation?
Before changing the law about six years ago, couples who remained in the same home while “separated” faced problems when they sought a divorce. After filing their dissolution of marriage forms, they discovered much of the property they accumulated during their “separation” was marital assets.
In the case of In re Marriage of Davis, the California Supreme Court ruled that the date of separation was when the couple no longer lived in the same home. The couple in the case had agreed to divide their assets and live separate and apart five years earlier.
However, the court found the date of separation was the date the couple no longer resided together in the same home. Therefore, the assets they accumulated during the five years they decided to be “separated” were marital assets.
The court had interpreted “separate and apart” as physical separation. The California legislature passed a law in 2016 that changed the court’s interpretation.
According to California Family Code §70, the court can consider the date the marital relationship ended instead of the date of physical separation when determining the date of separation for the division of community property. The new law became effective on January 1, 2017.
Judges consider factors other than physical separation to determine the date the couple legally separated. However, there must be a final and complete break in the marital relationship, as evidenced by:
- A spouse informs their partner they intend to end the marriage;
- The spouse’s intent must be made in clear terms that the other spouse can understand; and,
- The spouse’s conduct must be consistent with their stated intent to end the marriage.
Therefore, suppose you tell your spouse that you want a divorce. You discuss a legal separation, including dividing your assets and debts, and create a written agreement for property division and dividing debts and expenses. At the same time, you move into another room in the home and stop all intimate relations with your spouse.
In that case, a judge may determine you clearly communicated your intent to end the marriage by telling your husband you want a divorce. You discussed a legal separation with your husband. You created a plan to divide assets and debts and moved into another room in the home, ceasing marital relations.
Is California In-Home Separation a Good Option for Us?
Couples may need to remain in the same home for financial reasons or for their children. Therefore, in-home separation could be a good option for some couples who want to file for legal separation.
However, they must strictly adhere to California Family Code §70 requirements if they want to live separately and apart for legal reasons. Mistakes during separation could cause serious problems during a divorce.
Problems with in-home separation arise when the spouses do not follow the legal requirements for the situation. Suppose a judge believes you continued marital relations or you did not inform your spouse that you intended to end the marriage and legally separate. In that case, the judge may set the date of separation as the day you or your spouse move out of the marital home.
As a result, under California community property laws, your spouse could be entitled to 50% of all assets and income you accumulated during your in-home separation. You could lose a significant amount of the assets you worked hard to accumulate so you could move out on your own.
Furthermore, in-home separation could impact issues related to spousal support, child custody, and child support. The best way to protect your best interests is to seek legal advice from a San Diego divorce lawyer. An attorney can help you devise a plan that protects future assets, domestic support, and child custody.
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