California Passes Law Redefining “Separate and Apart”

Board Certified Family Law Specialist Matt Arnold answers the question: “Can I keep my Kids from seeing the other parent?”


Divorce often comes with new burdens, many of them financial. In addition to the cost of dividing your assets, paying attorneys and adjusting to a budget based on only one income, those going through a split also have to get new housing on their own. Many people underestimate this expense, forgetting that the same money that used to support one joint household will now need to be divided to support two separate homes.


Law books Charlotte Family LawyerThough this can be expensive, it is usually seen as necessary given the strict rule in many states that the couple must be living separate and apart before a divorce can be granted. Lawmakers in California, in an attempt to make things easier on those couples who can’t yet afford to lead separate lives, passed a new law that redefines what it means to live “separate and apart”, something that should make divorce a bit easier on some families by removing a hurdle from the process.


The law at issue, SB 1255, was signed by Governor Jerry Brown earlier this week. The law specifies that a married couple’s date of separation will now be defined as the date when the final break in the marriage occurred, rather than the date that the two started living separately. This means a marriage in California can be deemed over even if the couple continues living together under the same roof.


The reason this issue cropped up in the first place is thanks to a recent court case. The couple married in the early 1990s and became estranged several years later. Finally, in 2006, the wife told her husband their marriage was over, separated their finances and took a new job in a different city, spending several nights each week living in the other town. That went on for about two years until the wife filed for divorce, but the divorce was not finalized until 2011. The couple then fought over when the marriage had officially ended, as this would impact how much money the husband was entitled to lay claim to.


The court decided that though the two had separated in 2006, they were not technically living separate and apart. According to the California Supreme Court, this required not only emotional distance, but also physical distance. As a result, the Court said the husband was allowed to claim half of his wife’s income through 2011, something the wife had fought hard to keep as her own.


The new law will overturn the court ruling by making clear that a marriage can end without geographic separation. Courts are now told to consider the intentions of the spouses and look at whether their behavior indicates that they have indeed split up. If so, even if they live in the same house, the marriage can be deemed over and any assets acquired or income earned after that time can be deemed separate rather than communal property.


Those who supported the recent measure say that, especially with the recent increases in housing costs in California, many families simply can’t afford to maintain two households. Living together becomes a financial necessity and unfairly punishes those without the disposable income to live on their own. The hope is that new law makes it a bit easier for those struggling financially to move forward and create a new chapter in their lives.


If you find yourself facing a complicated family law matter, then you need the help of experienced family-law attorneys in Charlotte, North Carolina who can help guide you through the often confusing process of divorce. Please contact Arnold & Smith, PLLC today at (704) 370-2828 or find additional resources here.


About the Author

ARNOLD & SMITH LAWMatthew Arnold is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of family law, divorce, child custody, child support, alimony and equitable distribution.

Mr. Arnold was raised in Charlotte, where he graduated from Providence Senior High School. He attended Belmont Abbey College, where he graduated cum laude, before attending law school at the University of North Carolina at Chapel Hill on a full academic scholarship.

A certified Family-Law Specialist, Mr. Arnold is admitted to practice in all state and administrative courts in North Carolina, before the United States District Court for the Western District of North Carolina, and before the Fourth Circuit Court of Appeals in Richmond, Virginia.

In his free time, Mr. Arnold enjoys golfing and spending time with his wife and three children.





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