January 30, 2016

Big Change in California Family Law: Have You Ended Your Marriage or Not?


The law is changed over time by the courts and the State Legislature —two government entities that are constantly changing things in an effort to improve how our society functions.

For years, one of the most convoluted areas of California family law has been designating the date that a marriage ends. Attorneys call this subject “date of separation.” For ages the law in California has been that the date of separation is established when one person: 1) states that the marriage is over, and 2) after doing so, all of his or her actions are consistent with that statement.

Now this rule has always been considered an unfortunately blurry line and left family law professionals acknowledging that its blurriness engenders a lot of salacious case law on the subject. But when attorneys talked about the problems arising in divorce settlement negotiations due to the blurriness of the rule, most agreed that the alternative—to designate a bright line rule that the date of separation is when people start living in completely different residences—would not work well in the financial and social realities of California. Attorneys would point out that in California it can take months or years for people to change their lives enough to be able to afford separate residences. Professionals tangentially related to family law, like family therapists, would point out that requiring people to move into a new residence to end their spousal rights and responsibilities to each other might trigger people moving out when families and children aren’t emotionally ready; or, if someone must move to end a marriage, where do the kids go that first night/week/month when divorcing parents might not be emotionally collected enough to have that discussion?

So that was then. And this is now: the new rule of law in the state of California is that date of separation is established when spouses commence living in completely separate residences. That means that now, to unequivocally end your marriage, stating your intention to divorce your spouse is no longer enough; acting consistently with that statement is no longer enough; even filing a divorce action in family court is no longer enough. Due to a 2015 Alameda County family law court case, to unequivocally establish your date of separation in California—the date the accrual of community assets and obligations stops and the accrual of separate assets and debts starts—you and your spouse have to be living in completely different residences.

Some family law professionals are predicting dire social consequences to this new rule ranging from a rise in domestic violence due to the trauma of people unilaterally and possibly unexpectedly moving out of the family residence to a further flood of unrepresented parties in the family court system because even more people will be unable to afford attorney representation due to the added financial burden of having to live in completely different residences during the divorce process. And the only thing we can do now is sit back and let time show us whether this change in California family law is positive for our families going through the divorce transition or not.

Important Postscript And not to make you feel crazy about it all, but the new law does leave a slight specter, due to a footnote, that even if you establish completely different residences, you still may not have established your date of separation. So, to be on the safe side, if you commence living in completely different residences to establish the end of your marriage, don’t then go and do things that someone might interpret as “marriage-like behavior” with your spouse.

We were blessed to have her to help us through the rough spots in our lives.

Unmani is truly a blessing for those who find themselves ready to work with their soon-to-be-ex to bring a mutually satisfactory, peaceful end to their relationship.  Animosity and belligerence are optional in our lives, and Unmani is adept at reminding us of that and keeping us true to our better selves.  She has that rare gift for being light-hearted and no-nonsense at once, which of course is just what one needs at a time like that.  We were blessed to have her to help us through the rough spots in our lives.

- Don G.
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