A major consideration for “separated” spouses is the final break in the marriage. “Separation” occurs only when the parties have come to a parting of the ways with no present intent to resume their marriage and their conduct evinces a complete and final break in the marital relationship. Sometimes, however, one or both parties believe that they separated on a certain date, while a court might find otherwise.
Potential negative effects of failing to clarify a date of separation include an extension of the periods (1) for which a spouse could ultimately be liable for spousal support and (2) during which they could be considered to still be sharing finances (both income and debts) with the other spouse.
An obvious way to clarify these situations would be for one of the spouses to move out of the family residence and establish their own separate one. Immediately re-locating, though, could negatively impact the “move-out spouse’s” current and future custody position. If the children’s “home base” is the family residence, then it could be a risky move. Child support concerns would also be linked, as the calculations are largely based on respective timeshares with the children.
Thus, the initial consideration of move-out logistics can affect a case’s entire course, and in multiple ways. The act can be critical and should be carefully considered beforehand.
Prior California law left open the issue of whether cohabitating spouses could still be considered “separated” for purposes of the “final date of separation.”
In Marriage of Davis, the California Supreme Court recently clarified this, holding that living in separate residences is an indispensable threshold requirement for a finding that spouses are “living separate and apart” for purposes of the Family Code. Although the case’s already-infamous footnote 7 still left open the possibility that parties remaining under the same roof could hypothetically qualify as “separated,” that now seems less likely than ever.