Spouses ‘Living Separate and Apart’ Cannot Reside in Same Dwelling

Alysia Evans was extensively quoted in an column published by BNA Family Law Report on July 28, 2015 about the California Supreme Court’s ruling in re Davis (Davis v. Davis), which held that living in separate residences is an indispensable threshold requirement for a finding that estranged spouses are ‘‘living separate and apart’’ for purposes of the statute under which property is characterized as community or separate in their divorce.

Evans commenting on the ruling said that the court’s holding ‘‘is, technically, the correct result, based on the intent of the Legislature in 1870. It is also consistent with the requirement that a legally-separated obligor spouse cohabiting with the obligee spouse cannot deduct spousal support payments (26 U.S.C. § 71) [and] may be consistent with a tax court ruling that, with a written ‘separation agreement’ in place between two spouses attempting to reconcile their marriage living under the same roof, support paid under the agreement was deductible to the obligor spouse (Behnam v. Commissioner (2000) T.C.M.

However, Evans stated that the Davis ruling has complicated the way she will advise clients at the outset of a case.

“For example, it may be better for the children if they live under the same roof with the parents, but a spouse who is supporting the household may be very financially disadvantaged by remaining in the family residence.’’

Evans goes on to explain that Davis raises questions about California’s ‘no-fault’ divorce policy that purportedly allows couples to end their marital relationship upon one party’s communication to the other that their differences cannot be reconciled.

“Assuming that a financial partnership is just one aspect of a marital relationship, is one party now forced to continue that partnership until his or her unwilling spouse moves out?’’ Evans asked.

Under Davis, spouses living under the same roof must both agree to terminate the relationship. One spouse does not have the autonomy to end the marital relationship anymore, if the spouses share a dwelling.

“Davis has created leverage for the spouse who does not seek to end the financial partnership aspect of a marital relationship, where pre-Davis, there was none. Under Davis, the parties may not unilaterally end the financial aspect of the marital relationship until they (can afford to) live ‘separate and apart’,” Evans said, concluding that “[t]hese two policies are now in conflict.”

Published in BNA Family Law Report