Up until recently, California’s Family Code didn’t permit a couple to be considered “living separate and apart” unless they were also living at different addresses.
Fortunately, Senate Bill 1255, which went into effect at the start of 2017, changes that requirement.
Because California is a community property state, the date of separation controls the point where each spouse’s income and debts become his or her own.
However, there are often good reasons that couples still end up living in the same house even though they are no longer physically, financially, or emotionally “together.” In some cases, it boils down to nothing more than simple finances; a couple may not be able to afford to set up two different households and each maintain a suitable standard of living. If they can behave like nothing more than roommates who split the rent and the utilities, they can both maintain a better standard of living.
Sometimes, one spouse may fully intend to eventually move out, but needs the time to gather the money together for the basics, like first and last month’s rent on a new place, utility deposits and money for ordinary household items and furniture. That’s not easy to do when you’re also paying for a divorce.
In other situations, a spouse may be reluctant to move out of the marital home because an attorney has advised him or her that doing so could weaken the chances of receiving the home in the divorce. If there are children involved and one spouse moves into a small apartment and leaves the kids behind, that could be perceived as a form of abandonment. At the very least, it could make you seem like the parent that’s least interested in the well-being of the children. That might not bode well in a future custody battle.
The new law is much more subjective, so make sure you keep records of things like the date you informed your spouse the marriage was over, when you began dividing your financial obligations and when you moved into separate bedrooms. Should your spouse later contest the date of separation, that evidence could become highly important to your case.
An attorney can provide advice on effective property and income division when you still live under the same roof with your spouse.
Source: legalinfo.legislature.ca.gov, “SB-1255 Dissolution of marriage: date of separation,” accessed Jan. 24, 2017