How Do I Refer...? III. Someone Who Isn’t Separated, and Hasn’t Reached a Decision About Ending Their Marriage?

Counseling a client who is contemplating separation or divorce, or even “maybe thinking” about one, is among the most sensitive tasks family law attorneys face, and it draws as much on our counseling skill-set as it does on our lawyering.   The reasons for ending a marriage are even more varied than the reasons for starting one, and the level of emotion can be just as high, or higher. 

     One of our critical tasks in that situation is making sure that our client has useful correct information, both as to the “ground rules” and available options.  The mis-information circulating among the public, and even among trusted advisors other than family law attorneys, often exceeds the real stuff in volume.  

    The California Supreme Court has recently tried, in Marriage of Davis, to clarify one of those ground-rules, but has not provided guidance of much help to most of the public.   They sought to resolve the previously complicated question of how to determine when someone, in the words of California Family Code 771 is “... living separate and apart from the other spouse”.  This is a critical decision in California, since once that has happened, earnings aren’t community property any more.

    Until 2002, it was the (admittedly muddy) rule in California, that parties were separated when they had “come to a parting of the ways with no present intention of resuming the [marital relationship]. ....The question is whether the parties' conduct evidences a complete and final break in the marital relationship.”  Until 2002, it was clear that spouses could be ‘separated” while living under the same roof. 

Beginning in 2002 in Norviel, the court of appeal chipped away at the second part of that rule, and now, in Davis, the Supreme Court appears to have made the opposite the new rule: “ 'living separate and apart' refers to a situation in which spouses are living in separate residences and at least one of them has the subjective intent to end the marital relationship, which intent is objectively evidenced by words or conduct reflecting that there is a complete and final break in the marriage relationship”.

Until the legislature acts to further clarify this (a multitude of proposed bills are pending) navigating “the beginning of the end” of a marriage will require even more careful and sensitive advice of a sort that only experienced practitioners should be offering.