Marriage of Davis


Marriage of Davis

Honorable Thomas Trent Lewis

Judge Lewis serves in a long cause family law trial department in Los Angeles; he served as the Assistant Supervising Judge of the Family Law Division from 2011 to 2014. Judge Lewis practiced family law for over 28 years; and was designated a Certified Family Law Specialist in 1985; in 1987 he was inducted into the American Academy of Matrimonial Lawyers. In 2015, Judge Lewis was awarded the Los Angeles County Bar Association’s highest award through the family law section, the Spencer Brandies Award, for outstanding contribution to the field of family law.

The California Supreme Court resolved the question of whether living separate and apart requires that parties no longer live under the same roof by its decision In Re Marriage of Davis (2016) 2015 WL 4394006 ((Cal.)) (Davis). The Davis court adopted a bright line test derived from the analysis of the legislative history concerning Family Code Section 771(a) dating back to the 1870s.

No doubt, the court granted review in part because of the differences between the Davis District Court of Appeal and the holding of In re Marriage of Norviel (2002) 102 Cal. App. 4th 1152 (Norviel). Indeed, the holding in Davis carries forward the underlying rationale from Norviel, including references to what could be called an exceptional circumstances exception to the bright line test enunciated in Davis.

When Davis arrived at the California Supreme Court it drew the court’s attention to the legislative history of various iterations in the Civil Code, and then into the Family Law Act, ending eventually in the Family Code. The Davis opinion turns largely on legislative intent. The court observed that the Legislature has never seen fit to change or refine the definition of the phrase "living separate and apart." The District Court decision adopted a "totality of the circumstances" test to determine the two key factors regarding separation:

An objective manifestation of an intention to end the marriage because it had reached a final breaking point coupled with a determination of whether the couple was living separate and apart.

The Norviel decision expressed an understandable constraint upon the District Court, forcing it to grapple with the phrase "living separate and apart." The majority opinion in Norviel is functionally mirrored in the holding in Davis. Because of the thoughtful dissent by one of the justices in Norviel, the majority opinion in Norviel adopted the bright line test of being physically separated—namely, not living under the same roof as a component of any separation. However, the majority in Norviel, and the opinion in Davis, both acknowledge that there may be circumstances when a couple is under one roof but still separated1—just not in this case.

The Davis decision provides an ample presentation of the legislative history regarding the phrase living separate and apart; and the ruling surveys the case law regarding the date of separation issue referenced in an earlier article.2

Justice Liu observed: "Neither the Legislature nor this court has foreclosed the possibility that such a living arrangement may occur within a single dwelling." (Davis at 18) [Emphasis added]. So what does that mean? What circumstances qualify for the exception to the bright line rule in Davis discussed in Footnote 7 and the concurring opinion by Liu? Based on the majority opinion in Davis, there must be an objective manifestation of an irremediable breakdown in the marriage that bespeaks a final break in the marriage. This objective manifestation of a final breaking point must be coupled with the living separate and apart standard. Under the living separate and apart standard, Davis adopts a bright line test—namely, if you’re under the same roof, you’re not separated unless you can demonstrate exceptional circumstances. What are some of the exceptional circumstances?

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Davis answers the question in the negative. Drawn from the facts of the case, the following apparently do not qualify as exceptional circumstances:

  • Termination of sexual intimacy
  • Stop sharing the same bedroom
  • Maintain a relationship for the sake of the children
  • Separate finances and shared family expenses
  • Separate vacations
  • Celebration of children related birthdays and holidays
  • Cooperation only to the extent necessary to maintain the household
  • Abandon the marital relationship in every meaningful way

These are the facts developed in the District Court opinion in Davis; and they do not qualify under the exceptional circumstances exception.

In Lewis on Date of Separation the potential for some other alternatives that may qualify under the exceptional circumstances test:

Economic circumstances of this family unit, such as the cost of alternative housing, the availability of rent control or government subsidy, or impaired credit as a result of economic hardship

  • Health reasons such as a specially equipped home or proximity to medical care
  • Homeschooling of children, operation of a family business, Internet access, or the use of the family computer
  • A home-nesting arrangement where a party stays away during the week but stays at the home during the weekend to care for the children
  • Availability of transportation resources such as just one family car or proximity to public transportation or employment
  • Social pressure and perception of stigma sometimes associated with the decision to stop living together imposed by family or friends
  • Religious convictions and fear of reprisals within the community of faith.
  • Dependency of a spouse who lacks the resources to relocate children from another relationship or other dependent family members such as siblings or parents
  • Parental recognition for the need for a staged, empathetic transition for the children when parents decide to end the marriage but decide to let the children adjust to such a change, including the potential need to change the children’s school if one of the parties moves
  • Patterns of coercion and force including even greater feared retaliation in the minds of a victim of domestic violence who feels trapped in an unsafe relationship

In conclusion, while the Davis decision adopts a bright line test for "living separate and apart," it leaves open an exception for parties who live under the same roof that effectively adopts a totality of the circumstances test. It will take further Court of Appeal decisions to help refine our understanding of this exceptional circumstances exception. Stay tuned.

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1. See Footnote 7 in Davis and the concurring opinion written by Justice Liu joined by Justice Werdergar.

2. See Lewis, Family Law News Issue 3, 2014 Volume 3, No. 3 (hereinafter Lewis on Date of Separation).