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Are you legally "separated" if you're still living together?

Date-of-Seperation-400x230-thumb-250x143-956371.pngHow might a court divide community property from separate property while a couple considers themselves separated yet continue to live together?

That's the question the Supreme Court of California had to resolve recently. And to answer this question the attorneys felt it was necessary to explain where their clients had been sleeping.

The case isn't as tawdry as it sounds at first blush.

First Comes Marriage, then the Babies and then ... Divorce

After conceiving their second child in 1999, Sheryl Jones Davis and Keith Xavier Davis stopped being sexually intimate and began sleeping in separate bedrooms.

The spouses took separate vacations on occasions, traveled separately to their children's events, and took care of their own laundry.

Their next step was to handle their finances separately. By 2001, Keith had started a business and opened his own account. Two years later, Sheryl reactivated a separate bank account for her expenses.

Together, they handled routine household expenses.

It was in 2006 that Sheryl formally announced to her spouse that the marriage was over and presented a ledger to him itemizing their household expenses. She proposed that they split certain expenses evenly.

Sheryl went so far as to remove Keith from her credit cards. By July of 2006, she was working full-time and earning a sizeable income. Several months later, Keith left his job.

During this time, they celebrated holidays and birthdays together with the children and seemed to present a unified front for their kids.

The Davises Transition from Separate Lives to Divorce

In 2008, after fifteen years of marriage, Sheryl filed for divorce. She indicated their date of separation as June 1, 2006. Keith initially listed the separation date as January 2, 2009, and later changed it to July 1, 2011.

The courts, including the Court of Appeal, confirmed Sheryl's designated date of separation.

Keith disagreed and filed a second appeal, arguing that it was impossible for two spouses to live simultaneously separate and apart while remaining in the same house and sharing household expenses.

Sheryl argued that the court should determine the date of separation according to a couple's conduct, such as taking separate bedrooms and separating their bank accounts and credit cards.

Supreme Court Decides Whether a Law from 1848 is Still Relevant

This case is interesting in that the justices began to review the history of community property law in California, which dates back to 1848.

Then the justices applied the word "living separate and apart" to the 21st century. Black's Law defined the term as residing in different places and having no intention of resuming marital relations.

But did that definition apply to the Davis couple, who had been living apart in their home, not even commingling personal funds?

The justices then reasoned that "living separate and apart" might just mean, in today's world, "living separate lives."

Then the justices went on to look at the historical context of ownership of property. Back when California accepted Spain's definition of community property, women didn't even have the right to manage or control property.

In other words, so much had changed since these notions were originally conceived and routinely accepted.

But in the end, the Supreme Court sided with Keith, and concluded that the common understanding of the phrase "living separate and apart" is obvious; in order to be considered separated, the spouses can't remain living with each other.

What can you take away from this case? As soon as you decide to leave your spouse, physically separate from your spouse as soon as possible and separate yourself financially by opening your own bank accounts and credit cards.

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